UNITED STATES CODE ANNOTATED TITLE 2. THE CONGRESS CHAPTER 4 -- OFFICERS AND EMPLOYEES OF SENATE AND HOUSE OF REPRESENTATIVES Current through P.L. 104-194, approved 9-9-96 Sec. 60c-3. Withholding and remittance of State income tax by Secretary of Senate (a) Agreement by Secretary with appropriate State official; covered individuals Whenever -- (1) the law of any State provides for the collection of an income tax by imposing upon employers generally the duty of withholding sums from the compensation of employees and remitting such sums to the authorities of such State; and (2) such duty to withhold is imposed generally with respect to the compensation of employees who are residents of such State; then the Secretary of the Senate is authorized, in accordance with the provisions of this section, to enter into an agreement with the appropriate official of that State to provide for the withholding and remittance of sums for individuals -- (A) whose pay is disbursed by the Secretary; and (B) who request the Secretary to make such withholdings for remittance to that State. (b) Number of remittances authorized Any agreement entered into under subsection (a) of this section shall not require the Secretary to remit such sums more often than once each calendar quarter. (c) Requests by individuals of Secretary for withholding and remittance; amount of withholding; number and effective date of requests; change of designated State; revocation of request; rules and regulations (1) An individual whose pay is disbursed by the Secretary may request the Secretary to withhold sums from his pay for remittance to the appropriate authorities of the State that he designates. Amounts of withholdings shall be made in accordance with those provisions of the law of that State which apply generally to withholding by employers. (2) An individual may have in effect at any time only one request for withholdings, and he may not have more than two such requests in effect with respect to different States during any one calendar year. The request for withholdings is effective on the first day of the first month commencing after the day on Qualified State Tax References: Page 1 of 148 which the request is received in the Disbursing Office of the Senate, except that -- (A) when the Secretary first enters into an agreement with a State, a request for withholdings shall be effective on such date as the Secretary may determine; and (B) when an individual first receives an appointment, the request shall be effective on the day of appointment, if the individual makes the request at the time of appointment. (3) An individual may change the State designated by him for the purposes of having withholdings made and request that the withholdings be remitted in accordance with such change, and he may also revoke his request for withholdings. Any change in the State designated or revocation is effective on the first day of the first month commencing after the day on which the request for change or the revocation is received in the Disbursing Office. (4) The Secretary is authorized to issue rules and regulations he considers appropriate in carrying out this subsection. (d) Time or times of agreements by Secretary The Secretary may enter into agreements under subsection (a) of this section at such time or times as he considers appropriate. (e) Provisions as not imposing duty, burden, requirement or penalty on the United States, Senate, or any officer or employee of United States; effect of filing paper, form, or document with Secretary This section imposes no duty, burden, or requirement upon the United States, the Senate, or any officer or employee of the United States, except as specifically provided in this section. Nothing in this section shall be deemed to consent to the application of any provision of law which has the effect of subjecting the United States, the Senate, or any officer or employee of the United States to any penalty or liability by reason of the provisions of this section. Any paper, form, or document filed with the Secretary under this section is a paper of the Senate within the provisions of rule XXX of the Standing Rules of the Senate. (f) "State" defined For the purposes of this section, "State" means any of the States of the United States and the District of Columbia. CREDIT(S) 1985 Main Volume (P.L. 93-371, Sec. 101(2), Aug. 13, 1974, 88 Stat. 427.) Qualified State Tax References: Page 2 of 148 HISTORICAL NOTES HISTORICAL AND STATUTORY NOTES References in Text The Standing Rules of the Senate, referred to in subsec. (e), were revised generally in 1979. Provisions relating to withdrawal of papers from the files of the Senate which were formerly contained in Rule XXX of the Standing Rules of the Senate are contained in Rule XI of the Standing Rules of the Senate. REFERENCES CROSS REFERENCES Withholding of District of Columbia and State income taxes by Clerk and Sergeant at Arms of the House of Representatives, see 2 USCA 60e-1a. Withholding of District of Columbia and State income taxes generally, see 5 USCA 5516 and 5517. Withholding of State income taxes by Architect of the Capitol, see 40 USCA 166b-5. 2 USCA 60c-3, Withholding and remittance of State income tax by Secretary of Senate ------------ Excerpt from pages 30758-30759 UNITED STATES CODE ANNOTATED TITLE 2. THE CONGRESS CHAPTER 4 -- OFFICERS AND EMPLOYEES OF SENATE AND HOUSE OF REPRESENTATIVES Current through P.L. 104-194, approved 9-9-96 Sec. 60e-1a. Withholding of State income tax by Chief Administrative Officer of the House (a) Agreement with proper State official; covered individuals Until otherwise provided by law, the Chief Administrative Officer of the House of Representatives shall, in accordance with subsections (b), (c), and (d) of this section enter into an agreement with any State, at the request for agreement from the proper State official. The agreement shall provide that the Chief Administrative Officer shall withhold State income tax in the case of each Member and employee who is subject to such income tax and who voluntarily requests such withholding. (b) Number of remittances authorized Qualified State Tax References: Page 3 of 148 Any agreement entered into under subsection (a) of this section shall not require the Chief Administrative Officer to remit sums withheld pursuant to any such agreement more often than once each calendar quarter. (c) Acceptance or disapproval of proposed agreement by Committee on House Administration (1) The Chief Administrative Officer shall, before entering into any agreement under subsection (a) of this section, transmit a statement with respect to the proposed agreement to the Committee on House Administration of the House of Representatives (hereinafter in this section and section 60e-1b of this title referred to as the "committee"). Such statement shall set forth a detailed description of the proposed agreement, together with any other information which the committee may require. (2) If the committee does not disapprove, through appropriate action, any proposed agreement transmitted to the committee under paragraph (1) no later than ten legislative days after receiving such proposed agreement, then the Chief Administrative Officer may enter into such proposed agreement. The Chief Administrative Officer may not enter into any proposed agreement if such proposed agreement is disapproved by the committee under this paragraph. (d) Number and effective date of requests for withholding; change of designated State; revocation of request (1) A Member or employee may have in effect at any time only one request for withholding under subsection (a) of this section, and such Member or employee may not have more than two such requests in effect with respect to different States during any one calendar year. The request for withholding is effective on the first day of the month in which the request is processed by the Chief Administrative Officer, but in no event later than on the first day of the first month beginning after the day on which such request is received by the Chief Administrative Officer, except that -- (A) when the Chief Administrative Officer first enters into an agreement with a State under subsection (a) of this section, a request for withholding shall be effective on such date as the Chief Administrative Officer may determine; (B) when an individual first receives an appointment as an employee, the request shall be effective on the day of appointment, if the individual makes the request at the time of appointment; and (C) when an individual first becomes a Member, the request shall be effective on the day such individual takes the oath of office as a Member, if the individual makes the request at such time. (2) A Member or employee may change the State designated by Qualified State Tax References: Page 4 of 148 such Member or employee for purposes of having withholdings made, and may request that the withholdings be remitted in accordance with such change. A Member or employee also may revoke any request of such Member or employee for withholding. Any change in the State designated or revocation is effective on the first day of the month in which the request or the revocation is processed by the Chief Administrative Officer, but in no event later than on the first day of the first month beginning after the day on which such request or revocation is received by the Chief Administrative Officer. (e) Provisions as not imposing duty, burden, requirement, or penalty on United States, House, or any officer or employee of United States; effect of filing paper, form, or document with Chief Administrative Officer This section and section 60e-1b of this title impose no duty, burden, or requirement upon the United States, the House of Representatives, or any officer or employee of the United States, except as specifically provided in this section and section 60e- 1b of this title. Nothing in this section and section 60e-1b of this title shall be deemed to consent to the application of any provision of law which has the effect of subjecting the United States, the House of Representatives, or any officer or employee of the United States to any penalty or liability by reason of the provisions of this section and section 60e-1b of this title. Any paper, form, document, or any other item filed with, or submitted to, the Chief Administrative Officer under this section and section 60e-1b of this title is considered to be a paper of the House of Representatives within the provisions of the Rules of the House of Representatives. CREDIT(S) 1985 Main Volume (P.L. 94-440, Title II, Sec. 101, Oct. 1, 1976, 90 Stat. 1448.) 1996 Electronic Update (As amended P.L. 104-186, Title II, Sec. 204(4), Aug. 20, 1996, 110 Stat. 1730.) HISTORICAL NOTES HISTORICAL AND STATUTORY NOTES Codification Section is based on section 1 of House Resolution No. 732, Ninety-fourth Congress, Nov. 4, 1975, which was enacted into permanent law by P.L. 94-440. Change of Name Any reference in any provision of law enacted before Jan. 4, 1995, to the Committee on House Administration of the House of Qualified State Tax References: Page 5 of 148 Representatives treated as referring to the Committee on House Oversight of the House of Representatives, see section 1(a)(7) of P.L. 104-14, set out as a note preceding section 21 of this title. Transfer of Functions Any reference in any provision of law enacted before Jan. 4, 1995, to a function, duty, or authority of the Clerk of the House of Representatives treated as referring, with respect to that function, duty, or authority, to the officer of the House of Representatives exercising that function, duty, or authority, as determined by the Committee on House Oversight of the House of Representatives, see section 2(1) of P.L. 104-14, set out as a note preceding section 21 of this title. Certain functions of Clerk and Sergeant at Arms of House of Representatives transferred to Director of Non-legislative and Financial Services by section 7 of House Resolution No. 423, One Hundred Second Congress, Apr. 9, 1992. Any reference in any provision of law enacted before Jan. 4, 1995, to a function, duty, or authority of the Director of Non-legislative and Financial Services treated as referring, with respect to that function, duty, or authority, to the officer of the House of Representatives exercising that function, duty, or authority, as determined by the Committee on House Oversight of the House of Representatives, see section 2(4) of P.L. 104-14, set out as a note preceding section 21 of this title. Legislative History For legislative history and purpose of P.L. 104-186, see 1996 U.S. Code Cong. and Adm. News, p. ___. REFERENCES CROSS REFERENCES Definitions for purposes of this section, see 2 USCA 60e-1b. Withholding of District of Columbia and State income taxes by Secretary of the Senate, see 2 USCA 60c-3. Withholding of District of Columbia and State income taxes generally, see 5 USCA 5516 and 5517. Withholding of State income taxes by Architect of the Capitol, see 40 USCA 166b-5. 2 USCA 60e-1a, Withholding of State income tax by Chief Administrative Officer of the House ------------ Excerpt from pages 30767-30769 UNITED STATES CODE ANNOTATED Qualified State Tax References: Page 6 of 148 TITLE 3. THE PRESIDENT CHAPTER 4 -- DELEGATION OF FUNCTIONS Current through P.L. 104-194, approved 9-9-96 Sec. 301. General authorization to delegate functions; publication of delegations The President of the United States is authorized to designate and empower the head of any department or agency in the executive branch, or any official thereof who is required to be appointed by and with the advice and consent of the Senate, to perform without approval, ratification, or other action by the President (1) any function which is vested in the President by law, or (2) any function which such officer is required or authorized by law to perform only with or subject to the approval, ratification, or other action of the President: Provided, That nothing contained herein shall relieve the President of his responsibility in office for the acts of any such head or other official designated by him to perform such functions. Such designation and authorization shall be in writing, shall be published in the Federal Register, shall be subject to such terms, conditions, and limitations as the President may deem advisable, and shall be revocable at any time by the President in whole or in part. CREDIT(S) 1985 Main Volume (Added Oct. 31, 1951, c. 655, Sec. 10, 65 Stat. 712.) [General Materials (GM) - References, Annotations, or Tables] HISTORICAL NOTES HISTORICAL AND STATUTORY NOTES Transfer of Functions All functions vested by law (including reorganization plan) in the Bureau of the Budget or the Director of the Bureau of the Budget were transferred to the President of the United States by section 101 of 1970 Reorg. Plan No. 2, eff. July 1, 1970, 35 F.R. 7959, 84 Stat. 2085. Section 102 of 1970 Reorg. Plan. No. 2, redesignated the Bureau of the Budget as the Office of Management and Budget and the Director of the Bureau of the Budget as Director of the Office of Management and Budget. See Reorganization Plan No. 2 of 1970, set out in Appendix 1 to Title 5, Government Organization and Employees. Similar Provisions; Repeal; Savings Clause For similar provisions contained in prior law, and saving clause in connection therewith, see note preceding this section. Qualified State Tax References: Page 7 of 148 Standards of Ethical Conduct and Comprehensive System of Financial Reporting for Officers and Employees in the Executive Branch For provisions relating to standards of ethical conduct for government officers and employees, including financial reporting requirements for such persons, see Ex. Ord. No. 11222, May 8, 1965, 30 F.R. 6469, as amended, set out as a note under section 201 of Title 18, Crimes and Criminal Procedure. Abolition of Interstate Commerce Commission and Transfer of Functions Interstate Commerce Commission abolished and functions of Commission transferred, except as otherwise provided in P.L. 104- 88, to Surface Transportation Board effective Jan. 1, 1996, by section 702 of Title 49, Transportation, and section 101 of P.L. 104-88, set out as a note under section 701 of Title 49. References to Interstate Commerce Commission deemed to refer to Surface Transportation Board, a member or employee of the Board, or Secretary of Transportation, as appropriate, see section 205 of P.L. 104-88, set out as a note under section 701 of Title 49. Legislative History For legislative history and purpose of Act Oct. 31, 1951, see 1951 U.S.Code Cong. Service, p. 2578. TEXT EXECUTIVE ORDERS EXECUTIVE ORDER NO. 10250 June 5, 1951, 16 F.R. 5385, as amended by Ex. Ord. No. 10732, Oct. 10, 1957, 22 F.R. 8135; Ex. Ord. No. 10752, Feb. 12, 1958, 23 F.R. 973 DELEGATION OF FUNCTIONS TO THE SECRETARY OF THE INTERIOR 1. The Secretary of the Interior is hereby designated and empowered to perform the following-described functions of the President without the approval, ratification, or other action of the President: (a) The authority vested in the President by section 1 of the act of July 10, 1935, ch. 375, 49 Stat. 477 [see sections 19e to 19n of Title 16], to appoint members of the National Park Trust Fund Board. (b) The authority vested in the President by section 2059 of the Revised Statutes [section 62 of Title 25] to discontinue any Indian agency, or transfer the same, from the place or tribe designated by law to such other place or tribe as the public service may require. (c) The authority vested in the President by section 6 of Qualified State Tax References: Page 8 of 148 the act of May 17, 1882, ch. 163, 22 Stat. 88, as amended [section 63 of Title 25], to consolidate two or more Indian agencies into one, to consolidate one or more Indian tribes, and to abolish such agencies as are thereby rendered unnecessary. (d) The authority vested in the President by the act of March 1, 1907, ch. 2285, 34 Stat. 1016 [section 140 of Title 25], to divert appropriations made for certain purposes to other uses for the benefit of the several Indian tribes: Provided, that the Secretary of the Interior shall make to the Congress reports required in connection with action taken by him under this provision. (e) The authority vested in the President by section 5 of the act of February 8, 1887, ch. 119, 24 Stat. 389, as amended [section 348 of Title 25], by the act of December 24, 1942, ch. 814, 56 Stat. 1081, [section 348a of Title 25], by the act of June 21, 1906, ch. 3504, 34 Stat. 326 [section 391 of Title 25], and by section 3 of the act of January 12, 1891, 26 Stat. 712, as amended by section 3 of the act of March 2, 1917, ch. 146, 39 Stat. 976, to extend trust periods on land patents issued to Indians and to continue restrictions on alienation. (f) The authority vested in the President by section 4705(b) of the Internal Revenue Code of 1954 [former section 4705(b) of Title 26] to authorize certain persons in the Virgin Islands to obtain certain drugs for legitimate medical purposes without regard to order forms, and by section 4762(b) of such Code [former section 4762 of Title 26] to provide for the registration of and the imposition of special and transfer taxes upon persons in the Virgin Islands who import, manufacture, produce, compound, sell, deal in, dispense, prescribe, administer, or give away marihuana: Provided, that the Secretary of the Interior shall perform the functions referred to in this subsection in consultation with the Department of the Treasury. (g) The authority vested in the President by section 2343 of the Revised Statutes [section 46 of Title 30] to establish additional land districts and to appoint necessary officers under existing laws when deemed necessary for the public convenience in executing certain provisions of law with respect to mineral lands and mining. (h) The authority vested in the President by section 2252 of the Revised Statutes as affected by section 403 of Reorganization Plan No. 3 of 1946, 60 Stat. 1100 [section 121 of Title 43], to order the discontinuance of any land office and the transfer of any of its business and archives to any other land office within the same State or Territory. (i) The authority vested in the President by section 2250 of the Revised Statutes [section 125 of Title 43] to discontinue a land office in a land district under certain circumstances and to annex the same to some other adjoining land district. (j) The authority vested in the President by section 2251 of the Revised Statutes [section 126 of Title 43] to change the Qualified State Tax References: Page 9 of 148 location of the land offices in the several land districts established by law and to relocate the same from time to time at such point in the district as may be deemed expedient. (k) The authority vested in the President by section 2253 of the Revised Statutes [section 127 of Title 43] to change and re- establish the boundaries of land districts. (l) The authority vested in the President by section 2 of the act of March 2, 1917, ch. 145, 39 Stat. 951, as amended [section 737 of Title 48], to approve the payment out of the Treasury for other purposes of money derived from any tax levied or assessed for a special purpose in Puerto Rico. (m) The authority vested in the President by section 7 of the act of March 2, 1917, ch. 145, 39 Stat. 954; as amended [section 748 of Title 48], to convey to the people of Puerto Rico lands, buildings, or interests in lands, or other property owned by the United States, and to accept lands, buildings, or other interests or property by legislative grant from Puerto Rico. (n) The authority vested in the President by section 3(b) of the Act of March 3, 1925, ch. 426, 43 Stat. 1111, as amended [see section 167d of Title 50], to approve regulations governing the production and sale of helium for medical, scientific, and commercial use. (o) The authority vested in the President by section 6 of the act of April 26, 1906, ch. 1876, 34 Stat. 139, to remove from office the principal chief of the Choctaw, Cherokee, Creek, or Seminole tribe or the governor of the Chickasaw tribe, to declare any such office vacant, and to fill any vacancy in any such office arising from removal, disability, or death of the incumbent. (p) The authority vested in the President by section 28 of the act of April 26, 1906, ch. 1876, 34 Stat. 148, to approve acts, ordinances, or resolutions of the tribal council or legislature of the Choctaw, Chickasaw, Cherokee, Creek, and Seminole tribes or nations, and to approve contracts, involving the payment or expenditure of money or affecting property belonging to any of the said tribes or nations, made by them or any of them or by any officer thereof. (q) [Superseded by section 3 of Ex. Ord. No. 10752, Feb. 12, 1958, 23 F.R. 973, set out as a note under section 715j of Title 15, Commerce and Trade]. (r) The authority vested in the President by section 55 of the act of April 30, 1900, 31 Stat. 150, as amended [section 562 of Title 48] and by section 4 of the act of August 24, 1954, 68 Stat. 785, as amended [former section 562o of Title 48], to approve the issuance of bonds or other instruments of indebtedness by the Territory of Hawaii. 2. The Secretary of the Interior is hereby designated and empowered to perform, without the approval, ratification, or Qualified State Tax References: Page 10 of 148 other action of the President, the following functions which have heretofore, under the respective provisions of law cited, required the approval, ratification, or other action of the President in connection with their performance by the Secretary of the Interior: (a) The authority vested in the Secretary of the Interior by section 1 of the act of June 6, 1942, ch. 330, 56 Stat. 326 [section 459r of Title 16], to convey or lease to the States or to the political subdivisions thereof any or all of certain recreational demonstration projects and lands and equipment comprised within such projects or any parts of such projects; and to transfer to other Federal agencies any of the said recreational demonstration areas that may be of use to such agencies. (b) The authority vested in the Secretary of the Interior by section 3 of the act of July 3, 1918, ch. 128, 40 Stat. 755, as amended, and as affected by section 4(f) of Reorganization Plan No. II, effective July 1, 1939, 53 Stat. 1433 [section 704 of Title 16], to promulgate regulations permitting and governing the hunting, taking, capture, killing, possession, sale, purchase, shipment, transportation, carriage, or export of any migratory bird included in the terms of certain conventions, or any part, nest, or egg thereof. 3. As used in this order, the term "functions" embraces duties, powers, responsibilities, authority, or discretion, and the term "perform" may be construed to mean "exercise". 4. All actions heretofore taken by the President in respect of the matters affected by this order and in force at the time of the issuance of this order, including regulations prescribed by the President in respect of such matters, shall, except as they may be inconsistent with the provisions of this order, remain in effect until modified or revoked pursuant to the authority conferred by this order. 5. The Secretary of the Interior is hereby authorized to redelegate to the Under Secretary of the Interior any of the authority delegated to the Secretary of the Interior by section 1 of this order. EXECUTIVE ORDER NO. 10289 Sept. 17, 1951, 16 F.R. 9499, as amended by Ex. Ord. No. 10583, Dec. 20, 1954, 19 F.R. 8725; Ex. Ord. No. 10882, July 18, 1960, 25 F.R. 6869; Ex. Ord. No. 11110, June 4, 1963, 28 F.R. 5605; Ex. Ord. No. 11825, Dec. 31, 1974, 40 F.R. 1003; Ex. Ord. No. 12608, Sept. 9, 1987, 52 F.R. 34617 DELEGATION OF FUNCTIONS TO SECRETARY OF THE TREASURY 1. The Secretary of the Treasury is hereby designated and empowered to perform the following-described functions of the President without the approval, ratification, or other action of the President: Qualified State Tax References: Page 11 of 148 (a) The authority vested in the President by section 1 of the act of August 1, 1914, c. 223, 38 Stat. 609, 623, as amended [section 2 of Title 19], (1) to rearrange, by consolidation or otherwise, the several customs-collection districts, (2) to discontinue ports of entry by abolishing the same and establishing others in their stead, and (3) to change from time to time the location of the headquarters in any customs- collection district as the needs of the service may require. (b) The authority vested in the President by section 1 of the Anti-Smuggling Act of August 5, 1935, c. 438, 49 Stat. 517 [section 1701 of Title 19], (1) to find and declare that at any place or within any area on the high seas adjacent to but outside customs waters any vessel or vessels hover or are being kept off the coast of the United States and that, by virtue of the presence of any such vessel or vessels at such place or within such area, the unlawful introduction or removal into or from the United States of any merchandise or person is being, or may be, occasioned, promoted, or threatened, (2) to find and declare that certain waters on the high seas are in such proximity to such vessel or vessels that such unlawful introduction or removal of merchandise or persons may be carried on by or to or from such vessel or vessels, and (3) to find and declare that, within any customs-enforcement area, the circumstances no longer exist which gave rise to the declaration of such area as a customs- enforcement area. (c) The authority vested in the President by section 1 of the Act of August 26, 1985, Public Law 98-89, 97 Stat. 510 (46 U.S.C. 3101) [section 3101 of Title 46, Shipping] to suspend the provisions of law requiring the inspection of foreign-built vessels admitted to American registry. (d) The authority vested in the President by section 5 of the act of May 28, 1908, c. 212, 35 Stat. 425, as amended (46 U.S.C. Appendix 104) [section 104 of Title 46], to determine (as a prerequisite to the extension of reciprocal privileges by the Commissioner of Customs) that yachts used and employed exclusively as pleasure vessels and belonging to any resident of the United States are allowed to arrive at and depart from any foreign port and to cruise in the waters of such port without entering or clearing at the custom-house thereof and without the payment of any charges for entering or clearing, dues, duty per ton, tonnage taxes, or charges for cruising licenses. (e) The authority vested in the President by section 2 of the act of March 24, 1908, c. 96, 35 Stat. 46 (46 U.S.C. Appendix 134) [section 134 of Title 46], to name the hospital ships to which section 1 of the said act shall apply and to indicate the time when the exemptions thereby provided for shall begin and end. (f) The authority vested in the President by section 4228 of the Revised Statutes, as amended (46 U.S.C. Appendix 141) [section 141 of Title 46], (1) to -- declare that -- upon satisfactory proof being given by the government of any foreign Qualified State Tax References: Page 12 of 148 nation that no discriminating duties of tonnage or imposts are imposed or levied in the ports of such nation upon vessels wholly belonging to citizens of the United States, or upon the produce, manufactures, or merchandise imported in the same from the United States or from any foreign country -- the foreign discriminating duties of tonnage and impost within the United States are suspended and discontinued, so far as respects the vessels of such foreign nation, and the produce, manufactures, or merchandise imported into the United States from such foreign nation, or from any other foreign country, and (2) to suspend in part the operation of section 4219 of the Revised Statutes, as amended (46 U.S.C. Appendix 121) [section 121 of Title 46], and section IV, J, subsection 1 of the act of October 3, 1913, c. 16, 38 Stat. 195, as amended (46 U.S.C. Appendix 146) [section 146 of Title 46], so that foreign vessels from a country imposing partial discriminating tonnage duties upon American vessels, or partial discriminating import duties upon American merchandise, may enjoy in our ports the identical privileges which the same class of American vessels and merchandise may enjoy in such country: Provided, that prior to the issuance of an order of the Secretary of the Treasury suspending and discontinuing (wholly or in part) discriminating tonnage duties, imposts, and import duties within the United States, the Department of State shall obtain and furnish to the Secretary of the Treasury the proof required by the said section 4228, as amended, as the basis for that order. (g) The authority vested in the President by section 3650 of the Internal Revenue Code [now covered by section 7621 of Title 26], to establish convenient collection districts (for the purpose of assessing, levying, and collecting the taxes provided by the internal revenue laws), and from time to time to alter such districts. (h) The authority which is now vested in the President by section 2564(b) of the Internal Revenue Code [section 2564(b) of Title 26 (I.R.C.1939) ], and which on and after January 1, 1955, will be vested in the President by section 4735(b) of the Internal Revenue Code of 1954 [section 4735(b) of Title 26 (I.R.C.1954) ], to issue, in accordance with the provisions of the said section 2564(b) or 4735(b), as the case may be, orders providing for the registration and the imposition of a special tax upon all persons in the Canal Zone who produce, import, compound, deal in, dispense, sell, distribute, or give away narcotic drugs. (i) The authority vested in the President by section 5318 of the Revised Statutes, as amended (19 U.S.C. 540) [section 540 of Title 19, Customs Duties], to employ suitable vessels other than Coast Guard cutters in the execution of laws providing for the collection of duties on imports and tonnage; [(j) Revoked. Ex. Ord. No. 12608, Sept. 9, 1987, 52 F.R. 34617] 2. The Secretary of the Treasury is hereby designated and empowered to perform without the approval, ratification, or other Qualified State Tax References: Page 13 of 148 action of the President the following functions which have heretofore, under the respective provisions of law cited, required the approval of the President in connection with their performance by the Secretary of the Treasury: (a) The authority vested in the Secretary of the Treasury by section 6 of the act of July 8, 1937, c. 444, 50 Stat. 480 [section 728 of Title 40], to make rules and regulations necessary for the execution of the functions vested in the Secretary of the Treasury by the said act, as amended. (b), (c) [Revoked by Ex. Ord. No. 11110, June 4, 1963, 28 F.R. 5605.] (d) [Revoked by Ex. Ord. No. 11825, Dec. 31, 1974, 40 F.R. 1003.] (e) The authority vested in the Secretary of the Treasury by section 1 of Title II of the act of June 15, 1917, c. 30, 40 Stat. 220 [section 191 of Title 50], to make rules and regulations governing the anchorage and movement of any vessel, foreign or domestic, in the territorial waters of the United States. [(f) Revoked. Ex. Ord. No. 12608, Sept. 9, 1987, 52 F.R. 34617.] 3. (a) The Secretary of the Treasury and the Postmaster General are hereby designated and empowered jointly to prescribe without the approval of the President regulations, under section 1 of the act of July 8, 1937, c. 444, 50 Stat. 479 [section 721 of Title 40], governing the shipment of valuables by the executive departments, independent establishments, agencies, wholly-owned corporations, officers, and employees of the United States. (b) The Postmaster General [now United States Postal Service] is hereby designated and empowered to exercise without the approval, ratification, or other action of the President the authority vested in the President by section 504(b) of Title 18 of the United States Code to approve regulations issued by the Secretary of the Treasury under the authority of the said section 504(b) (relating to the printing, publishing, or importation, or the making or importation of the necessary plates for such printing or publishing, of postage stamps for philatelic purposes), and to approve any amendment or repeal of any of such regulations by the Secretary of the Treasury. 4. As used in this order, the term "functions" embraces duties, powers, responsibilities, authority, or discretion, and the term "perform" may be construed to mean "exercise". 5. All actions heretofore taken by the President in respect of the matters affected by this order and in force at the time of the issuance of this order, including regulations prescribed by the President in respect of such matters, shall, except as they may be inconsistent with the provisions of this order, remain in Qualified State Tax References: Page 14 of 148 effect until amended, modified, or revoked pursuant to the authority conferred by this order. 3 USCA 301, General authorization to delegate functions; publication of delegations ------------ Excerpt from pages 32726-32733 EXECUTIVE ORDER NO. 10637 Sept. 19, 1955, 20 F.R. 7025 DELEGATION OF FUNCTIONS TO SECRETARY OF THE TREASURY Section 1. The Secretary of the Treasury is hereby designated and empowered to perform the following-described functions without the approval, ratification, or other action of the President: (a) The authority vested in the President by section 149 of title 14 of the United States Code, in his discretion, to detail officers and enlisted men of the Coast Guard to assist foreign governments in matters concerning which the Coast Guard may be of assistance. (b) The authority vested in the President by section 229 of title 14 of the United States Code to revoke the commission of any officer on the active list of the Coast Guard who, at the date of such revocation, has had less than three years of continuous service as a commissioned officer in the Coast Guard, and to prescribe regulations relating to such revocations. (c) The authority vested in the President by section 232 of title 14 of the United States Code, in his discretion, to retire from active service any commissioned officer of the Coast Guard, upon his own application, who has completed twenty years of active service in the Coast Guard, Navy, Army, Air Force, or Marine Corps, or the Reserve Components thereof. (d) The authority vested in the President by section 235 of title 14 of the United States Code [see section 251 et seq. of Title 14], to retire, to approve the retirement of, to place out of line of promotion, and to approve the placing out of line of promotion of, officers of the Coast Guard. (e) The authority vested in the President by section 492 of title 14 of the United States Code to present a distinguished service medal (including incidental items) to any person who, while serving in any capacity with the Coast Guard, distinguishes himself by exceptionally meritorious service to the Government in a duty of great responsibility. (f) The authority vested in the President by section 493 of title 14 of the United States Code to present the Coast Guard medal (including incidental items) to any person who, while serving in any capacity with the Coast Guard, distinguishes Qualified State Tax References: Page 15 of 148 himself by heroism not involving actual conflict with an enemy. (g) The authority vested in the President by section 494 of title 14 of the United States Code to award emblems, insignia, rosettes, and other devices, to the extent that such authority relates to the awarding of such items to be worn with the distinguished service medal or the Coast Guard medal. (h) The authority vested in the President by section 498 of title 14 of the United States Code to make posthumous awards of decorations and to designate representatives to receive such awards, to the extent that such authority relates to the awarding of the distinguished service medal or the Coast Guard medal, or ribbons, emblems, insignia, rosettes, or other devices corresponding thereto. (i) The authority vested in the President by section 499 of title 14 of the United States Code to make rules, regulations, and orders to the extent that they shall relate to the authority described in sections 1(f), 1(g), and 1(h) above. (j) The authority vested in the President by the first paragraph of section 806 of the act of September 8, 1916, ch. 463, 39 Stat. 799 [section 77 of Title 15], to direct the detention of any vessel, American or foreign, by withholding clearance or by formal notice forbidding departure; but such authority shall be exercised by the Secretary of the Treasury only upon a finding by the President that there is reasonable ground to believe that the vessel concerned is making or giving undue or unreasonable preference or advantage to any party, or is subjecting any party to undue or unreasonable prejudice, disadvantage, injury, or discrimination, as described in the said paragraph; and the authority so vested to revoke, modify, or renew any such direction. (k) The authority vested in the President by the second paragraph of the said section 806 of the act of September 8, 1916 [section 77 of Title 15], to withhold clearance from one or more vessels of a belligerent country or government until such belligerent shall restore to American vessels and American citizens reciprocal liberty of commerce and equal facilities for trade, and the authority to direct that similar privileges and facilities, if any, enjoyed by vessels and citizens of such belligerent in the United States or its possessions be refused to vessels or citizens of such belligerent; but such authority shall not, in either instance, be exercised by the Secretary of the Treasury with respect to any vessel or citizen of such belligerent unless and until the President proclaims that the belligerent nation concerned is denying privileges and facilities to American vessels as described in the said paragraph. (l) The authority vested in the President by section 963(a) of title 18 of the United States Code to detain, in accordance with the provisions of such section, any armed vessel, or any vessel, domestic or foreign (other than one which has entered the ports of the United States as a public vessel), which is manifestly built for warlike purposes or has been converted or Qualified State Tax References: Page 16 of 148 adapted from a private vessel to one suitable for warlike use, and to determine, in each case, whether the proof required by such section is satisfactory. (m) The authority vested in the President by section 967(a) of title 18 of the United States Code, during a war in which the United States is a neutral nation, to withhold clearance from or to any vessel, domestic or foreign, or, by service of formal notice upon the owner, master, or person in command or in charge of any domestic vessel not required to secure clearances, and to forbid its departure from port or from the United States, whenever there is reasonable cause to believe that such vessel is about to carry fuel, arms, ammunition, men, supplies, dispatches, or information to any warship, tender, or supply ship of a foreign belligerent nation in violation of the laws, treaties, or obligations of the United States under the law of nations. (n) The authority vested in the President by section 10(a) of the act of November 4, 1939, ch. 2, 54 Stat. 9 [section 450(a) of Title 22], to require the owner, master, or person in command of a vessel to give a bond to the United States, as prescribed by the said section 10(a). (o) The authority vested in the President by section 10(b) of the act of November 4, 1939, ch. 2, 54 Stat. 9 [section 450(b) of Title 22], to prohibit the departure of a vessel from a port of the United States, in accordance with the provisions of the said section 10(b). (p) The authority vested in the President by section 2 of the act of August 18, 1914, ch. 256, 38 Stat. 699 [section 236 of Title 46], to suspend, in his discretion, by order, so far and for such length of time as he may deem desirable, the provisions of law prescribing that all watch officers of vessels of the United States registered for foreign trade shall be citizens of the United States. (q) The authority vested in the President by section 2 of the act of October 17, 1940, ch. 896, 54 Stat. 1201 [section 643b of Title 46], to extend, whenever in his judgment the national interest requires, the provisions of subsection (b) of section 4551. Revised Statutes, as amended [section 643(b) of Title 46], to such additional class or classes of vessels and to such waters as he may designate. (r) The authority vested in the Secretary of the Treasury by the first paragraph of section 1 of Title II of the act of June 15, 1917, ch. 30, 40 Stat. 220, as amended [section 191 of Title 50], during a national emergency proclaimed as provided in the said paragraph, (1) to make rules and regulations governing the anchorage and movement of any vessel, foreign or domestic, in the territorial waters of the United States, and (2) to take full possession and control of such vessel for the purposes set forth in the said paragraph. (s) The authority vested in the President by section 6 of the act of July 24, 1941, ch. 320, 55 Stat. 604, as amended [see Qualified State Tax References: Page 17 of 148 note set out under section 5501 of Title 10, Armed Forces], to make appointments of officers below flag rank without the advice and consent of the Senate, to the extent that such authority relates, pursuant to section 11(b) of the said act, as amended [see section 5787 of Title 10, Armed Forces], to officers of the United States Coast Guard. Sec. 2. The Secretary of the Treasury is hereby designated and empowered to perform without the approval, ratification, or other action of the President the following described functions to the extent that they relate to the United States Coast Guard: (a) The authority vested in the President by Article 4(a) of the Uniform Code of Military Justice (section 1 of the act of May 5, 1950, ch. 169, 64 Stat. 110) [see section 804 of Title 10, Armed Forces], to convene a general court-martial to try any dismissed officer, upon application by the officer concerned for trial by court-martial. (b) The authority vested in the President by Articles 4(c) and 75 of the Uniform Code of Military Justice (64 Stat. 110, 132) [see sections 804 and 875 of Title 10, Armed Forces], to reappoint a discharged officer to such commissioned rank and precedence as the former officer would have attained had he not been dismissed, and to direct the extent to which any such reappointment shall affect the promotion status of other officers. (c) The authority vested in the President by section 10 of the act of May 5, 1950, ch. 169, 64 Stat. 146 [see sections 1161 and 6408 of Title 10, Armed Forces], to drop from the rolls any officer who has been absent without authority from his place of duty for a period of three months or more, or who, having been found guilty by the civil authorities of any offense, is finally sentenced to confinement in a Federal or State penitentiary or correctional institution. (d) The authority vested in the President by section 219 of the Armed Forces Reserve Act, approved July 9, 1952 (66 Stat. 487) [see section 593 of Title 10, Armed Forces], to make appointments of Reserves in commissioned grades below flag officer grades. (e) The authority vested in the President by section 221 of the said Armed Forces Reserve Act [see section 593 of Title 10, Armed Forces], to determine the tenure in office of commissioned officers of the reserve. (f) The authority vested in the President by section 248 of the said Armed Forces Reserve Act [see section 1162 of Title 10, Armed Forces], to effect the discharge of commissioned officers of the reserve. (g) The authority vested in the President by section 6 of the act of February 21, 1946, ch. 34, 60 Stat. 27 [see section 6323 of Title 10, Armed Forces], as made applicable to the Coast Guard Reserve by section 755(a) of title 14 of the United States Qualified State Tax References: Page 18 of 148 Code, in his discretion, to place upon the retired list any officer of the Coast Guard Reserve, upon his own application, who has completed more than twenty years of active service as described in the said section 6. Sec. 3. All actions heretofore taken by the President with respect to the matters affected by this order and in force at the time of issuance of this order, including any regulations prescribed or approved by the President with respect to such matters, shall, except as they may be inconsistent with the provisions of this order, remain in effect until amended, modified, or revoked pursuant to the authority conferred by this order. Sec. 4. As used in this order, the term "functions" embraces duties, powers, responsibilities, authority, or discretion, and the term "perform" may be construed to mean "exercise". Sec. 5. Whenever the entire Coast Guard operates as a service in the Navy, the references to the Secretary of the Treasury in the introductory portions of sections 1 and 2 of this order shall be deemed to be references to the Secretary of the Navy. DWIGHT D. EISENHOWER 3 USCA 301, General authorization to delegate functions; publication of delegations ------------ Excerpt from pages 32737-32741 EXECUTIVE ORDER NO. 11609 July 22, 1971, 36 F.R. 13747, as amended by Ex. Ord. No. 11713, Apr. 21, 1973, 38 F.R. 10069; Ex. Ord. No. 11779, Apr. 22, 1974, 39 F.R. 14185; Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055; Ex. Ord. No. 12215, May 27, 1980, 45 F.R. 36043; Ex. Ord. No. 12466, Feb. 27, 1984, 49 F.R. 7349; Ex. Ord. No. 12522, June 24, 1985, 50 F.R. 26337; Ex. Ord. No. 12608, Sept. 9, 1987, 52 F.R. 34617; Ex. Ord. No. 12822, Nov. 16, 1992, 57 F.R. 54289. DELEGATION OF CERTAIN FUNCTIONS VESTED IN THE PRESIDENT TO OTHER OFFICERS OF THE GOVERNMENT By virtue of the authority vested in me by section 301 of title 3 of the United States Code [this section], and as President of the United States, it is hereby ordered as follows: Section 1. General Services Administration. The Administrator of General Service is hereby designated and empowered to exercise, without the approval, ratification, or other action of the President, the following: (1) The authority of the President under 5 U.S.C. 4111(b) [section 4111(b) of Title 5, Government Organization and Employees] to prescribe regulations with respect to reductions to Qualified State Tax References: Page 19 of 148 be made from payments by the Government to employees for travel, subsistence, or other expenses incident to training in a non- Government facility or to attendance at a meeting. (2) The authority of the President under the last sentence of 5 U.S.C. 5702(a) [section 5702(a) of Title 5] to establish maximum rates of per diem allowances to the extent that such authority pertains to travel status of employees (as defined in 5 U.S.C. 5701) [section 5701 of Title 5] while en route to, from, or between localities situated outside the 48 contiguous States of the United States and the District of Columbia. (3) The authority of the President under 5 U.S.C. 5707 [section 5707 of Title 5] to prescribe regulations necessary for the administration of subchapter I of chapter 57 of title 5 of the United States Code [section 5701 et seq. of Title 5] (relating to travel and subsistence expenses and mileage allowances). (4) The authority of the President under 5 U.S.C. 5722(a) [section 5722(a) of Title 5] to prescribe regulations with respect to the payment of travel expenses and transportation expenses of household goods and personal effects. (5) The authority of the President under 5 U.S.C. 5723(a) [section 5723(a) of Title 5] to prescribe regulations with respect to the payment of travel expenses and transportation expenses. (6) The authority of the President under 5 U.S.C. 5724 [section 5724 of Title 5] to prescribe the regulations provided for therein (relating to travel and transportation expenses and other matters). (7)(a) The authority of the President under 5 U.S.C. 5724a [section 5724a of Title 5] to prescribe the regulations provided for therein, relating to (i) the availability of appropriations or other funds of agencies for the reimbursement of described expenses of employees for whom the Government pays expenses of travel and transportation under 5 U.S.C. 5724(a) [section 5724(a) of Title 5], (ii) the entitlement of employees to amounts related to their basic pay, and (iii) the allowance, payment, and receipt of expenses and benefits to former employees who are reemployed by nontemporary appointments. (b) In consultation with the Secretary of the Treasury, the authority of the President under 5 U.S.C. 5724b [section 5724b of Title 5, Government Organization and Employees] to prescribe the regulations provided for therein relating to reimbursement of Federal, State, and city income taxes for travel, transportation, and relocation expenses of employees, transferred at Government expense, furnished in kind or for which reimbursement or an allowance is provided. (c) The authority of the President under 5 U.S.C. 5724c [section 5724c of Title 5, Government Organization and Employees] to prescribe the regulations provided for therein pursuant to Qualified State Tax References: Page 20 of 148 which each agency shall carry out its responsibilities under 5 U.S.C. 5724c; provided, that the Director of Central Intelligence, after consultation with the Administrator of General Services, shall prescribe such regulations for the Central Intelligence Agency. (8) The authority of the President under 5 U.S.C. 5726 [section 5726 of Title 5] to prescribe the regulations provided for therein, relating to (i) the definition of "household goods and personal effects", (ii) allowable storage expenses and related transportation, and (iii) the allowance of nontemporary storage expenses or storage at Government expense in Government- owned facilities (including related transportation and other expenses). (9) The authority of the President under 5 U.S.C. 5727 [section 5727 of Title 5] to prescribe the regulations provided for therein, relating to the transportation at Government expense of privately owned motor vehicles. (10) The authority of the President under 5 U.S.C. 5728(a) and (b) [section 5728(a) and (b) of Title 5] to prescribe the regulations provided for therein, relating to the payment by an agency from its appropriations of the expenses of round trip travel of an employee, and the transportation of his immediate family, in described circumstances. (11) The authority of the President under 5 U.S.C. 5729(a) and (b) [section 5729(a) and (b) of Title 5] to prescribe the regulations provided for therein, relating to (i) the payment by an agency from its appropriations of the expenses of transporting the immediate family of an employee and of shipping his household goods and personal effects, and (ii) the reimbursement from its appropriations by an agency of an employee for the proper transportation expense of returning his immediate family and household goods and personal effects, both in described circumstances. (12) The authority of the President under 5 U.S.C. 5731(a) [section 5731(a) of Title 5] to prescribe the regulations provided for therein, relating to certifications respecting transportation accommodations. (13) The authority of the President under 5 U.S.C. 5742(b) [section 5742(b) of Title 5] to prescribe regulations with respect to the payment of expenses when an employee dies. (14) The authority of the President under the last sentence of paragraph (c) of section 32 of title III of the Act of July 22, 1937, c. 517, 50 Stat. 525 (7 U.S.C. 1011(c)) [section 1011(c) of Title 7, Agriculture], to transfer to Federal, State, or Territorial agencies lands acquired by the Secretary of Agriculture under section 32(a) of that Act [section 1011(a) of Title 7]. (15) The authority of the President under section 340 of the Consolidated Farmers Home Administration Act of 1961, 75 Stat. Qualified State Tax References: Page 21 of 148 318 (7 U.S.C. 1990) [section 1990 of Title 7], in his discretion to transfer to the Secretary of Agriculture any right, interest or title held by the United States in any lands acquired in the program of national defense and no longer needed for that program, and to determine the suitability of the lands to be transferred, for the purposes referred to in that section: Provided, That the exercise by the Administrator of the authority delegated to him by this paragraph (15) shall require the concurrence of the Secretary of Defense as to the absence of further need of the lands for the national defense program. (16) The authority of the President under section 4(k) of the Tennessee Valley Authority Act, 55 Stat. 599 (16 U.S.C. 831c(k)) [section 831c(k) of Title 16, Conservation], to approve transfers under paragraphs (a) and (c) of that section, other than leases for terms of less than 20 years and conveyances of property having a value not in excess of $500. (17) The authority of the President under section 7(b) of the Tennessee Valley Authority Act of May 18, 1933, 48 Stat. 63 (16 U.S.C. 831f(b)) [section 831f(b) of Title 16], to provide for the transfer to the Tennessee Valley Authority of the use, possession, and control of real or personal property of the United States deemed by the Administrator of General Services to be necessary and proper for the purposes of that Authority as stated in that Act. (18) The authority of the President under section 1 of the Act of March 4, 1927, c. 505, 44 Stat. 1422 (20 U.S.C. 191) [section 191 of Title 20, Education], to transfer to the jurisdiction of the Secretary of Agriculture for the purposes of that Act any land belonging to the United States within or adjacent to the District of Columbia located along the Anacostia River North of Benning Bridge. (19) That part of the authority of the President under section 7(a) of the Act of July 17, 1959, P.L. 86-91, 73 Stat. 216, as amended (20 U.S.C. 905(a)) [section 905(a) of Title 20], which consists of authority to prescribe regulations relating to storage (including packing, drayage, unpacking, and transportation to and from storage) of household effects and personal possessions. (20) The authority of the Administrator of General Services under section 210(i) of the Federal Property and Administrative Services Act of 1949, as amended (40 U.S.C. 490(i)) [section 490(i) of Title 40, Public Buildings, Property, and Works] to prescribe regulations relating to the installation, repair, and replacement of sidewalks. (21) The authority of the President under section 108 of the Housing Act of July 15, 1949, c. 338, 63 Stat. 419, as amended (42 U.S.C. 1458) [section 1458 of Title 42, The Public Health and Welfare], to transfer, or cause to be transferred, to the Secretary of Housing and Urban Development any right, title or interest held by the Federal Government or any department or agency thereof in any land (including buildings thereon) which is Qualified State Tax References: Page 22 of 148 surplus to the needs of the Government and which a local public agency certifies will be within the area of a project being planned by it. (22), (23) [Revoked by Ex. Ord. No. 12215, May 27, 1980, 45 F.R. 36043]. Sec. 2. Department of the Treasury. The Secretary of the Treasury is hereby designated and empowered to exercise, without the approval, ratification, or other action of the President, the following: (1) The authority under 5 U.S.C. 5943(a) [section 5943(a) of Title 5] to make recommendations to the President concerning the meeting of losses sustained by employees and members of the uniformed services while serving in a foreign country due to appreciation of foreign currency in its relation to the American dollar. (2) The authority under 5 U.S.C. 5943(d) [section 5943(d) of Title 5] to report annually to the Congress on expenditures made under 5 U.S.C. 5943(d). Sec. 3. Department of Health and Human Services. The Secretary of Health and Human Services is hereby designated and empowered to exercise without the approval, ratification, or other action of the President, the following: (1) The authority of the President under the first section of the Act entitled "An Act to authorize the operation of stands in Federal buildings by blind persons, to enlarge the economic opportunities of the blind, and for other purposes," approved June 20, 1936, 49 Stat. 1559, as amended (20 U.S.C. 107) [section 107 of Title 20], to approve regulations prescribed by the heads of the respective departments and agencies thereunder. (2) The authority of the Secretary of Health and Human Services under section 2 of the Act of August 4, 1947, c. 478, 61 Stat. 751, as amended (24 U.S.C. 168a) [section 168a of Title 24, Hospitals, Asylums and Cemeteries], to fix per diem rates for care of patients in Saint Elizabeth Hospital. Sec. 4. Department of State. (a) The Secretary of State is hereby designated and empowered to exercise his authority under section 12 of the Act of August 1, 1956, 70 Stat. 892 (22 U.S.C. 2679) [section 2679 of Title 22, Foreign Relations and Intercourse] (being authority to prescribe certain maximum rates of per diem in lieu of subsistence (or of similar allowances therefor)), without the approval, ratification, or other action of the President. (b) The Secretary of State is hereby designated and empowered to exercise the authority of the President under section 9 of the United Nations Participation Act of 1945 (59 Stat. 619), as amended by section 15 of Public Law 93-126 (87 Stat. 454-455) [section 287e-1 of Title 22, Foreign Relations and Intercourse]. Qualified State Tax References: Page 23 of 148 Sec. 5. Department of Defense. The Secretary of Defense is hereby designated and empowered to exercise the authority of the President under the last sentence of section 4 of the Act of May 10, 1943, c. 95, 57 Stat. 81 (24 U.S.C. 34) [section 34 of Title 24] to prescribe from time to time uniform rates of charges for hospitalization and dispensary services: Provided, That the authority hereby delegated may not be redelegated to any officer in the Department of the Navy, Department of the Air Force, or Department of the Army. Sec. 6. Department of Health and Human Services; Department of Defense. The following are hereby designated and empowered to exercise, without the approval, ratification, or other action of the President, the authority of the President under 10 U.S.C. 1085 [section 1085 of Title 10, Armed Forces] to establish uniform rates of reimbursement for inpatient medical or dental care: (1) The Secretary of Health and Human Services in respect of such care in a facility under his jurisdiction. (2) The Secretary of Defense in respect of such care in a facility of an armed force under the jurisdiction of a military department. Sec. 7. Veterans Administration [now Department of Veterans Affairs]. (a) The Administrator of Veterans Affairs [now Secretary of Veterans Affairs] is hereby designated and empowered to exercise the authority of the President under 10 U.S.C. 1074(b) [section 1074(b) of Title 10] to approve uniform rates of reimbursement for care provided in facilities operated by the Administrator [now Secretary]. (b) Section 2 of Executive Order No. 11302 of September 6, 1966, as amended by Executive Order No. 11429 of September 9, 1968 [set out as a note under section 111 of Title 38, Veterans' Benefits], is hereby further amended by substituting for the words "allowance of not more than six cents a mile" the following: "allowance, in such amount per mile as the Administrator shall from time to time fix pursuant to 38 U.S.C. 111 as affected by this order,". Sec. 8. Office of Personnel Management. The Office of Personnel Management is hereby designated and empowered to exercise, without the approval, ratification, or other action of the President, the following: (1) The authority of the President under 5 U.S.C. 5514(b) [section 5514(b) of Title 5] to approve regulations prescribed by the head of each agency to carry out 5 U.S.C. 5514 [section 5514 of Title 5] and section 3(a) of the Act of July 15, 1954, c. 509, 68 Stat. 483, 31 U.S.C. 581d [section 581d of Title 31, Money and Finance] (relating to installment deductions from pay for indebtedness because of erroneous payment). (2) The authority of the President under 5 U.S.C. 5903 Qualified State Tax References: Page 24 of 148 [section 5903 of Title 5] to prescribe regulations necessary for the uniform administration of subchapter I of chapter 59 of title 5 of the United States Code [section 5901 et seq. of Title 5] (relating to uniform allowances). (3) The authority of the President under 5 U.S.C. 5942 [section 5942 of Title 5] to prescribe regulations establishing rates at which an allowance based on duty (except temporary duty) at remote work sites will be paid and defining and designating the sites, areas and groups of positions to which the rates apply. (4) The authority of the President under 5 U.S.C. 5942a [section 5942a of Title 5] to prescribe regulations governing the payment of allowances to employees assigned to duty at Johnston Island for the purposes of maintaining the employees' spouses or dependents, or both, at a location other than Johnston Island. Sec. 9. Office of Management and Budget. The Director of the Office of Management and Budget is hereby designated and empowered to exercise, without the approval, ratification, or other action of the President, the following: (1) The authority of the President under 5 U.S.C. 5911(f) [section 5911(f) of Title 5] to issue the regulations provided for therein (relating to the provision, occupancy, and availability of quarters and facilities, the determination of rates and charges therefor, and other related matters, as are necessary and appropriate to carry out the provision of section 5911 [section 5911 of Title 5]). (2) The authority of the President under 10 U.S.C. 126(a) [section 126(a) of Title 10] to approve the transfers of balances of appropriations provided for therein. (3) The authority of the President under section 202 of the Budget and Accounting Procedures Act of September 12, 1950, 64 Stat. 833 (31 U.S.C. 581c) [section 581c of Title 31] to approve the transfers of balances of appropriations provided for in subsections (a) and (b) of that section. (4) The authority of the President under the last sentence of section 11 of the Act of June 6, 1924, c. 270, 43 Stat. 463 (40 U.S.C. 72) [section 72 of Title 40], to approve (i) the designation of lands to be acquired by condemnation, (ii) contracts for purchase of lands, and (iii) agreements between the National Capital Planning Commission and officials of the States of Maryland and Virginia. (5) The authority of the President under section 1 of the Act of December 22, 1928, c. 48, 45 Stat. 1070 (40 U.S.C. 72a) [section 72a of Title 40], to approve contracts for acquisition of land subject to limited rights reserved to the grantor and for the acquisition of limited permanent rights in land adjoining park property. (6) The authority of the President under section 407(b) of Qualified State Tax References: Page 25 of 148 the Act of August 30, 1957, 71 Stat. 556 (42 U.S.C. 1594j(b)) [section 1594j(b) of Title 42] to approve regulations (relating to the rental of substandard housing for members of the uniformed services) prescribed pursuant to that section. The Secretaries referred to in section 407(c) of that Act [section 1594j(c) of Title 42] shall furnish the Director of the Office of Management and Budget such reports with respect to matters within the scope of the regulations so approved as he may require and at such times as he may specify. (7) The authority of the President under 44 U.S.C. 1108 [section 1108 of Title 44, Public Printing and Documents] to approve the use, from the appropriations available for printing and binding, of such sums as are necessary for the printing of journals, magazines, periodicals, and similar publications. (8) The authority of the President under the paragraph appearing under the heading "Expenses of Management Improvement" in title III of the Treasury, Post Office, and Executive Office Appropriation Act, 1971, P.L. 91-422, 84 Stat. 877, or by any reenactment of the provisions of that paragraph in the same or in a different amount of funds, to allocate to any agency or office of the executive branch (including the Office of Management and Budget) funds appropriated by that paragraph or by any such reenactment on it. The Director of the Office of Management and Budget shall from time to time report to the President concerning activities carried on by executive agencies and offices with funds allocated under this paragraph and shall, consonant with law, exercise such direction and control with respect to those activities as he shall deem appropriate. Sec. 10. General Provisions. (a) Unless inappropriate, any reference in this order to any provision of law shall be deemed to include reference thereto as amended from time to time and as affected by Reorganization Plan No. 2 of 1970 (35 F.R. 7959) [set out in the Appendix 1 to Title 5]. (b) Unless inappropriate, any reference in any Executive order to any Executive order which is superseded by this order, or to any Executive order provision so superseded, shall hereafter be deemed to refer to this order or to the provision of the preceding sections of this order, if any, which corresponds to the superseded provision. (c) All actions heretofore taken by the President, the Director of the Bureau of the Budget, or the Director of the Office of Management and Budget in respect of the matters affected by the provisions of the preceding sections of this order and in force at the time of the issuance of this order, including any regulations prescribed or approved by any of them in respect of such matters, shall, except as may be inconsistent with the provisions of this order, remain in effect until amended, modified, or revoked pursuant to the authority conferred by this order unless sooner terminated by operation of law. Sec. 11. Orders superseded. The following are hereby superseded: Qualified State Tax References: Page 26 of 148 (1) Executive Order No. 10604 of April 22, 1955. (2) Executive Order No. 11230 of June 28, 1965. (3) Executive Order No. 11275 of March 31, 1966. (4) Executive Order No. 11290 of July 21, 1966. (5) Section 3 of Executive Order No. 11294 of August 4, 1966. (6) To the extent that it is inconsistent with this order, Executive Order No. 11541 of July 1, 1970. Sec. 12. Taking effect. This order shall be effective immediately except that paragraphs (1) to (13), inclusive, and paragraph (19), of section 1 hereof shall become effective ninety days after the date of this order. [Veterans' Administration and Administrator of Veterans' Affairs deemed a reference to Department of Veterans Affairs and Secretary of Veterans Affairs, respectively, pursuant to P.L. 100-527, Sec. 10(1), (2), Oct. 25, 1988, 102 Stat. 2635, as amended, set out as a note under section 301 of Title 38, Veterans' Benefits.] UNITED STATES CODE ANNOTATED TITLE 5. GOVERNMENT ORGANIZATION AND EMPLOYEES PART III -- EMPLOYEES SUBPART D -- PAY AND ALLOWANCES CHAPTER 55 -- PAY ADMINISTRATION SUBCHAPTER II -- WITHHOLDING PAY Current through P.L. 104-194, approved 9-9-96 UNITED STATES CODE ANNOTATED TITLE 5. GOVERNMENT ORGANIZATION AND EMPLOYEES PART III -- EMPLOYEES SUBPART B -- EMPLOYMENT AND RETENTION CHAPTER 33 -- EXAMINATION, SELECTION, AND PLACEMENT SUBCHAPTER II -- OATH OF OFFICE Current through P.L. 104-194, approved 9-9-96 Sec. 3331. Oath of office Qualified State Tax References: Page 27 of 148 An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed services, shall take the following oath: "I, AB, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God." This section does not affect other oaths required by law. CREDIT(S) 1996 Main Volume (P.L. 89-554, Sept. 6, 1966, 80 Stat. 424.) [General Materials (GM) - References, Annotations, or Tables] HISTORICAL NOTES HISTORICAL AND STATUTORY NOTES Revision Notes and Legislative Reports 1966 Acts. All but the quoted language in R.S. Sec. 1757 is omitted as obsolete since R.S. Sec. 1757 was originally an alternative oath to the oath prescribed in R.S. Sec. 1756 which oath was repealed by the Act of May 13, 1884, ch. 46, Sec. 2, 23 Stat. 22. The words "An individual, except the President, . . . in the civil service or uniformed services" are substituted for "any person . . . either in the civil, military, or naval service, except the President of the United States". The second sentence of former section 16 is changed to read, "This section does not affect other oaths required by law.". Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report. REFERENCES CROSS REFERENCES Custody of oath in Congress, court, or agency to which office pertains, see 5 USCA 2906. Fee or pay for administering oath prohibited, see 5 USCA 2904. Officer affidavit that no consideration was paid for appointment filed with oath under this section, see 5 USCA 3332. Qualified State Tax References: Page 28 of 148 Peace Corps enrollees oath of office under this section, see 22 USCA 2504. Persons authorized to administer oath, see 5 USCA 2903. Postal Service oath of office, see 39 USCA 1011. Renewal of oaths, see 5 USCA 2905. Requirement to take new oath upon appointment to a higher grade by -- Coast Guard Reserve commissioned officers, see 14 USCA 735. National Oceanic and Atmospheric Administration commissioned officers, see 33 USCA 854a-2. Officers on the active-duty list, see 10 USCA 626. Regular Coast Guard officers, see 14 USCA 273. Reserve active-status list officers, see 10 USCA 14309. Temporary appointees in time of war or national emergency, see 10 USCA 603. Warrant officers, see 10 USCA 578. Reserve component officer subscription to oath prescribed by this section, see 10 USCA 12201. Secretary of the Senate authorization to designate Disbursing Office employees to administer oaths under this section, see 2 USCA 64-1. Volunteers in Service to America oath under this section, see 42 USCA 4954. Voting referees subscription to the oath required by this section, see 42 USCA 1971. LIBRARY REFERENCES American Digest System Appointment, qualification, and tenure of federal officers, see United States K35. Mode of administration of oath, see Oaths K3. Encyclopedias Appointment of federal officers, see C.J.S. United States Sec. 35. Requisites and sufficiency of oaths, see C.J.S. Oaths and Affirmations Sec. 5. Qualified State Tax References: Page 29 of 148 ANNOTATIONS NOTES OF DECISIONS Effect of oath 5 Expatriation 9 Failure to take oath 6 Form of oath 4 Office within section 2 Other oaths required by law 7 Persons required to take oath 3 Prerequisite to compensation 8 Presumptions 10 Purpose 1 1. Purpose In reference to the oath of office required by Act Aug. 6, 1861, c. 64, 12 Stat. 326 (predecessor of the commonly called test oath prescribed by Act July 2, 1862, c. 128, 12 Stat. 502), it was said that such oath was wisely framed for the purpose of upholding the paramount authority of the national government and recognized allegiance to the United States, as the highest political duty and it emphatically repelled the deadly heresy of a paramount state allegiance. Charge to Grand Jury, C.C.Mass.1861, 2 Sprague 287, Fed.Cas. No. 18,277. 2. Office within section An office is a public station conferred by appointment, and the term embraces the ideas of tenure, duration, emolument, and duties. Drury v. U.S., 1908, 43 Ct.Cl. 237. 3. Persons required to take oath A disbursing agent was a public officer required to take the prescribed oath. Bartlett v. U.S., 1904, 39 Ct.Cl. 338, affirmed 25 S.Ct. 433, 197 U.S. 230, 49 L.Ed. 735. Consular agents were not regarded as officers required to take the oath of office and give a bond, but were accountable to the Consul under whom they acted. Sampson v. U.S., 1895, 30 Ct.Cl. 365. Requirement of former Sec. 16 of this title [now this section] that every person elected or appointed to any office, whether of honor or profit, take a prescribed oath, did not Qualified State Tax References: Page 30 of 148 extend to the clerk of a Supervisor of Internal Revenue on the ground that he was not an officer. Hedrick v. U.S., 1880, 16 Ct.Cl. 88. It was no defense to action on arbitration award, made by Interstate Commerce Commission in voluntary proceedings, that oath was not taken by arbitrator or waived, since every security given by arbitrator's oath was afforded by constitutional oaths of individual members of Commission, required by former Sec. 16 of this title [now this section]. Davis v. Rochester Can Co., 1924, 207 N.Y.S. 33, 124 Misc. 123. The oath prescribed by Congress for any person elected or appointed to any office of honor or profit in the "civil, military, or naval service of the United States" except the President, has no application to officers of the states, or any subdivision thereof, and failure of state legislators to take such oath did not affect the validity of Vernon's Ann.C.C.P. art. 52-158 passed at such session creating the court that convicted defendant. Van Hodge v. State, 1946, 191 S.W.2d 24, 149 Tex.Cr.R. 64. Subjects of a foreign nation may be appointed marshals of the consular courts, and when so appointed need not, under the laws and regulations, take the prescribed oath but all such officers should be required to take an oath or affirmation to faithfully perform the duties of their offices except as to allegiance and support of the Constitution of the United States. 1902, 23 Op.Atty.Gen. 608. Where, under Act Feb. 14, 1889, c. 166, 25 Stat. 670, one was appointed from civil life to be major of engineers in the Army, and thereupon was placed on the retired list of the Army as of that grade, he had to take the required oath, and this act would be in law a legal acceptance of the office and as such a sufficient formal acceptance. 1889, 19 Op.Atty.Gen. 283. Former Sec. 16 of this title [now this section] contemplated that the oath should be taken at every new appointment before entering upon the duty. 1889, 19 Op.Atty.Gen. 219, 221. The words "every person elected or appointed to any office of honor or profit, either in the civil, military, or naval service", used in former Sec. 16 of this title [now this section] included members of Congress. 1882, 17 Op.Atty.Gen. 419. Clerks in the executive departments were officers, and were required to take the oath prescribed. 1868, 12 Op.Atty.Gen. 521. Aliens appointed as professors at the U.S. Naval Academy must take the oath prescribed by this section. 1943, 23 Comp.Gen. 301. 4. Form of oath The form of oath prescribed by former Sec. 16 of this title [now this section] was intended to relieve those to whom it Qualified State Tax References: Page 31 of 148 related from the necessity of taking the oath required by R.S. Sec. 1756 (repealed by Act May 13, 1884, c. 46, 23 Stat. 22), commonly known as the test oath, and in lieu thereof to require the modified oath prescribed. 1871, 13 Op.Atty.Gen. 390. 5. Effect of oath An official oath is an incident to the discharge of the duties imposed and does not in itself constitute him who takes it an officer de jure. Glavey v. U.S., 1900, 35 Ct.Cl. 242, reversed on other grounds 21 S.Ct. 891, 182 U.S. 595, 45 L.Ed. 1247. 6. Failure to take oath Omission of an officer to take the required oath does not, it seems, invalidate his acts in regard to third persons nor subject such acts to collateral attack. Vaccari v. Maxwell, C.C.N.Y.1855, 3 Blatchf. 368, 28 Fed.Cas. 862, No. 16,810. 7. Other oaths required by law While Postmasters, in common with all other offices of the United States, except the President, are now required to take the oath of office prescribed in R.S. Sec. 1757 [now this section], they are not exempted from taking the oath prescribed by Act Mar. 5, 1874, ch. 46 [now Sec. 1011 of Title 39], relative to the performance of duties in the Postal Service, but must take this also. 1885, 18 Op.Atty.Gen. 181. 8. Prerequisite to compensation A public officer is usually entitled to the emoluments of the office only after qualification. Poore v. U.S., 1914, 49 Ct.Cl. 192. 9. Expatriation A retired reserve officer who is receiving retired pay based upon completion of a prescribed period of service in the armed forces when he acquires foreign citizenship would no longer be liable for involuntary recall to active duty in times of war or national emergency and the acquisition of the foreign citizenship would be inconsistent with the oath prescribed for reserve officers to support and defend the Constitution of the United States; therefore, in the absence of any law authorizing continuation of an officer's membership in a reserve organization after he becomes a citizen of a foreign country, payment of retired pay may not be approved. 1962, 41 Comp.Gen. 715. 10. Presumptions An officer of the Customs Service, duly commissioned, and acting in the duties of his office, is presumed to have taken the regular oaths. U.S. v. Bachelder, C.C.N.H.1814, Fed.Cas. No. 14,490. Qualified State Tax References: Page 32 of 148 5 USCA 3331, Oath of office ------------ Excerpt from pages 35785-35789 Sec. 5511. Withholding pay; employees removed for cause (a) Except as provided by subsection (b) of this section, the earned pay of an employee removed for cause may not be withheld or confiscated. (b) If an employee indebted to the United States is removed for cause, the pay accruing to the employee shall be applied in whole or in part to the satisfaction of any claim or indebtedness due the United States. CREDIT(S) 1996 Main Volume (P.L. 89-554, Sept. 6, 1966, 80 Stat. 477.) [General Materials (GM) - References, Annotations, or Tables] HISTORICAL NOTES HISTORICAL AND STATUTORY NOTES Revision Notes and Legislative Reports 1966 Acts. In subsection (a), the words "From and after February 24, 1931" are omitted as executed. The word "employee" is coextensive with and substituted for "civil employee of the United States" in view of the definition of "employee" in section 2105. Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report. REFERENCES LIBRARY REFERENCES American Digest System Recovery of compensation after suspension or removal of officer, agent, or employee, see United States K39(1) et seq., 39(8). Encyclopedias Recovery of compensation after suspension or removal of officer, agent, or employee, see C.J.S. United States Sec. 43 et seq. Qualified State Tax References: Page 33 of 148 5 USCA 5511, Withholding pay; employees removed for cause ------------ Excerpt from page 36772 UNITED STATES CODE ANNOTATED TITLE 5. GOVERNMENT ORGANIZATION AND EMPLOYEES PART III -- EMPLOYEES SUBPART D -- PAY AND ALLOWANCES CHAPTER 55 -- PAY ADMINISTRATION SUBCHAPTER II -- WITHHOLDING PAY Current through P.L. 104-194, approved 9-9-96 Sec. 5512. Withholding pay; individuals in arrears (a) The pay of an individual in arrears to the United States shall be withheld until he has accounted for and paid into the Treasury of the United States all sums for which he is liable. (b) When pay is withheld under subsection (a) of this section, the General Accounting Office, on request of the individual, his agent, or his attorney, shall report immediately to the Attorney General the balance due; and the Attorney General, within 60 days, shall order suit to be commenced against the individual. CREDIT(S) 1996 Main Volume (P.L. 89-554, Sept. 6, 1966, 80 Stat. 477; P.L. 92-310, Title II, Sec. 202, June 6, 1972, 86 Stat. 202.) [General Materials (GM) - References, Annotations, or Tables] HISTORICAL NOTES HISTORICAL AND STATUTORY NOTES Revision Notes and Legislative Reports 1966 Acts. In subsection (b), reference to the "General Accounting Office" is substituted for "accounting officers of the Treasury" on authority of the Act of June 10, 1921, ch. 18, title III, 42 Stat. 23. The words "on request of" are substituted for "if required to do so by" as more accurately reflecting the intent. Qualified State Tax References: Page 34 of 148 Reference to the "Attorney General" is substituted for "Solicitor of the Treasury" and "Solicitor" on authority of section 16 of the Act of March 3, 1933, ch. 212, 47 Stat. 1517; section 5 of E.O. 6166, June 10, 1933; and section 1 of 1950 Reorg. Plan No. 2, 64 Stat. 1261. Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report. 1972 Acts. Senate Report No. 92-790, see 1972 U.S. Code Cong. and Adm. News, p. 2364. Amendments 1972 Amendments. Subsec. (b). P.L. 92-310 eliminated "and his sureties" following "against the individual". REFERENCES CROSS REFERENCES Armed forces officers pay withheld under this section, see 37 USCA 1007. Coast Guard, pay of enlisted men indebted to United States, see 14 USCA 461. LIBRARY REFERENCES American Digest System Compensation of federal officers, agents, and employees; deductions and set-offs against pay, see United States K39(1) et seq., 39(10). Encyclopedias Compensation of federal officers, agents, and employees; deductions and set-offs against pay, see C.J.S. United States 43 et seq., 49. ANNOTATIONS NOTES OF DECISIONS Generally 1 Hearing 4 Mandatory nature of section 2 Moot questions 5 Payments subject to withholding 3 1. Generally Qualified State Tax References: Page 35 of 148 Federal Housing Administration and Veterans' Administration possessed clear authority to initiate setoff mechanism to collect alleged debt of federal government employee, who was employed by Veterans' Administration, to Federal Housing Administration. Atwater v. Roudebush, D.C.Ill.1976, 452 F.Supp. 622. 2. Mandatory nature of section Should accountable officer request it, General Accounting Office is required to report lost amount to Attorney General, who, in turn, is required to institute legal action against accountable officer; since this section is mandatory, there is no provision for discretion to decline to report debt, or to sue accountable officer. 1985, 64 Op.Comp.Gen. 606. 3. Payments subject to withholding Where $15,992.20 in government funds disappeared while entrusted to United States Navy petty officer who was serving as an agent-cashier aboard ship, the Navy did not act arbitrarily or capriciously in withholding a total of $5,845.92 from the petty officer's pay between the time the loss was discovered and the date of his voluntary discharge from the Navy. Serrano v. U.S., Ct.Cl.1979, 612 F.2d 525, 222 Ct.Cl. 52. Government possesses clear legal authority, grounded in common law right of every creditor to apply moneys of his debtor in his hands to extinguishment of claims due him from debtor, to apply all available assets in its possession, including both unpaid salary and retirement funds belonging to defaulting officer or employee toward liquidation of that individual's indebtedness to government. Atwater v. Roudebush, D.C.Ill.1976, 452 F.Supp. 622. Where it has been determined that a United States Post Office Department [now United States Postal Service] employee was responsible for thefts from registered currency remittances, the setoff of plaintiff's indebtedness against his civil service retirement credit and his withheld salary is authorized under this section. Parker v. U.S., Ct.Cl.1969, 187 Ct.Cl. 553. 4. Hearing The Immigration and Naturalization Service must accord its employees a Goldberg v. Kelly type hearing before the Service withholds, pursuant to this section, the wages of such employees in satisfaction of a debt allegedly owed the United States. 1979 (Counsel-Inf.Op.) 3 Op.O.L.C. 269. 5. Moot questions Collection of debt prior to, or during pendency of, litigation does not present courts with moot question, since issue at trial concerns original amount asserted against officer, and not balance remaining to be paid. 1985, 64 Op.Comp.Gen. 606. Qualified State Tax References: Page 36 of 148 5 USCA 5512, Withholding pay; individuals in arrears ------------ Excerpt from pages 36773-36775 UNITED STATES CODE ANNOTATED TITLE 5. GOVERNMENT ORGANIZATION AND EMPLOYEES PART III -- EMPLOYEES SUBPART D -- PAY AND ALLOWANCES CHAPTER 55 -- PAY ADMINISTRATION SUBCHAPTER II -- WITHHOLDING PAY Current through P.L. 104-194, approved 9-9-96 UNITED STATES CODE ANNOTATED TITLE 5. GOVERNMENT ORGANIZATION AND EMPLOYEES PART III -- EMPLOYEES SUBPART D -- PAY AND ALLOWANCES CHAPTER 55 -- PAY ADMINISTRATION SUBCHAPTER II -- WITHHOLDING PAY Current through P.L. 104-194, approved 9-9-96 Sec. 5513. Withholding pay; credit disallowed or charge raised for payment When the General Accounting Office, on a statement of the account of a disbursing or certifying official of the United States, disallows credit or raises a charge for a payment to an individual in or under an Executive agency otherwise entitled to pay, the pay of the payee shall be withheld in whole or in part until full reimbursement is made under regulations prescribed by the head of the Executive agency from which the payee is entitled to receive pay. This section does not repeal or modify existing statutes relating to the collection of the indebtedness of an accountable, certifying, or disbursing official. CREDIT(S) 1996 Main Volume (P.L. 89-554, Sept. 6, 1966, 80 Stat. 477.) [General Materials (GM) - References, Annotations, or Tables] Qualified State Tax References: Page 37 of 148 HISTORICAL NOTES HISTORICAL AND STATUTORY NOTES Revision Notes and Legislative Reports 1966 Acts. The words "On and after May 26, 1936" are omitted as executed. The word "official" is substituted for "officer" and "officers" as the definition of "officer" in section 2104 excludes a member of a uniformed service. The words "from the United States or from an agency or instrumentality thereof" are omitted as unnecessary. Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report. REFERENCES LIBRARY REFERENCES American Digest System Compensation of federal officers, agents, and employees; deductions and set-offs against pay, see United States K39(1) et seq., 39(10). Encyclopedias Compensation of federal officers, agents, and employees; deductions and set-offs against pay, see C.J.S. United States 43 et seq., 49. 5 USCA 5513, Withholding pay; credit disallowed or charge raised for payment ------------ Excerpt from pages 36776-36777 UNITED STATES CODE ANNOTATED TITLE 5. GOVERNMENT ORGANIZATION AND EMPLOYEES PART III -- EMPLOYEES SUBPART D -- PAY AND ALLOWANCES CHAPTER 55 -- PAY ADMINISTRATION SUBCHAPTER II -- WITHHOLDING PAY Current through P.L. 104-194, approved 9-9-96 Sec. 5514. Installment deduction for indebtedness to the United States Qualified State Tax References: Page 38 of 148 (a)(1) When the head of an agency or his designee determines that an employee, member of the Armed Forces or Reserve of the Armed Forces, is indebted to the United States for debts to which the United States is entitled to be repaid at the time of the determination by the head of an agency or his designee, or is notified of such a debt by the head of another agency or his designee the amount of indebtedness may be collected in monthly installments, or at officially established pay intervals, by deduction from the current pay account of the individual. The deductions may be made from basic pay, special pay, incentive pay, retired pay, retainer pay, or, in the case of an individual not entitled to basic pay, other authorized pay. The amount deducted for any period may not exceed 15 percent of disposable pay, except that a greater percentage may be deducted upon the written consent of the individual involved. If the individual retires or resigns, or if his employment or period of active duty otherwise ends, before collection of the amount of the indebtedness is completed, deduction shall be made from subsequent payments of any nature due the individual from the agency concerned. All Federal agencies to which debts are owed and which have outstanding delinquent debts shall participate in a computer match at least annually of their delinquent debt records with records of Federal employees to identify those employees who are delinquent in repayment of those debts. The preceding sentence shall not apply to any debt under the Internal Revenue Code of 1986. Matched Federal employee records shall include, but shall not be limited to, records of active Civil Service employees government-wide, military active duty personnel, military reservists, United States Postal Service employees, employees of other government corporations, and seasonal and temporary employees. The Secretary of the Treasury shall establish and maintain an interagency consortium to implement centralized salary offset computer matching, and promulgate regulations for this program. Agencies that perform centralized salary offset computer matching services under this subsection are authorized to charge a fee sufficient to cover the full cost for such services. (2) Except as provided in paragraph (3) of this subsection, prior to initiating any proceedings under paragraph (1) of this subsection to collect any indebtedness of an individual, the head of the agency holding the debt or his designee, shall provide the individual with -- (A) a minimum of thirty days written notice, informing such individual of the nature and amount of the indebtedness determined by such agency to be due, the intention of the agency to initiate proceedings to collect the debt through deductions from pay, and an explanation of the rights of the individual under this subsection; (B) an opportunity to inspect and copy Government records relating to the debt; (C) an opportunity to enter into a written agreement with the agency, under terms agreeable to the head of the agency or Qualified State Tax References: Page 39 of 148 his designee, to establish a schedule for the repayment of the debt; and (D) an opportunity for a hearing on the determination of the agency concerning the existence or the amount of the debt, and in the case of an individual whose repayment schedule is established other than by a written agreement pursuant to subparagraph (C), concerning the terms of the repayment schedule. A hearing, described in subparagraph (D), shall be provided if the individual, on or before the fifteenth day following receipt of the notice described in subparagraph (A), and in accordance with such procedures as the head of the agency may prescribe, files a petition requesting such a hearing. The timely filing of a petition for hearing shall stay the commencement of collection proceedings. A hearing under subparagraph (D) may not be conducted by an individual under the supervision or control of the head of the agency, except that nothing in this sentence shall be construed to prohibit the appointment of an administrative law judge. The hearing official shall issue a final decision at the earliest practicable date, but not later than sixty days after the filing of the petition requesting the hearing. (3) Paragraph (2) shall not apply to routine intra-agency adjustments of pay that are attributable to clerical or administrative errors or delays in processing pay documents that have occurred within the four pay periods preceding the adjustment and to any adjustment that amounts to $50 or less, if at the time of such adjustment, or as soon thereafter as practical, the individual is provided written notice of the nature and the amount of the adjustment and a point of contact for contesting such adjustment. (4) The collection of any amount under this section shall be in accordance with the standards promulgated pursuant to sections 3711 and 3716-3718 of title 31 or in accordance with any other statutory authority for the collection of claims of the United States or any agency thereof. (5) For purposes of this subsection -- (A) "disposable pay" means that part of pay of any individual remaining after the deduction from those earnings of any amounts required by law to be withheld; and (B) "agency" includes executive departments and agencies, the United States Postal Service, the Postal Rate Commission, the United States Senate, the United States House of Representatives, and any court, court administrative office, or instrumentality in the judicial or legislative branches of the Government, and government corporations. (b)(1) The head of each agency shall prescribe regulations, subject to the approval of the President, to carry out this section and section 3530(d) of title 31. Regulations prescribed by the Secretaries of the military departments shall be uniform Qualified State Tax References: Page 40 of 148 for the military services insofar as practicable. (2) For purposes of section 7117(a) of this title, no regulation prescribed to carry out subsection (a)(2) of this section shall be considered to be a Government-wide rule or regulation. (c) Subsection (a) of this section does not modify existing statutes which provide for forfeiture of pay or allowances. This section and section 3530(d) of title 31 do not repeal, modify, or amend section 4837(d) or 9837(d) of title 10 or section 1007(b), (c) of title 37. (d) A levy pursuant to the Internal Revenue Code of 1986 shall take precedence over other deductions under this section. CREDIT(S) 1996 Main Volume (P.L. 89-554, Sept. 6, 1966, 80 Stat. 477; P.L. 96-54, Sec. 2(a)(2), Aug. 14, 1979, 93 Stat. 381; P.L. 97-258, Sec. 3(a)(12), Sept. 13, 1982, 96 Stat. 1063; P.L. 97-365, Sec. 5, Oct. 25, 1982, 96 Stat. 1751; P.L. 97-452, Sec. 2(a)(2), Jan. 12, 1983, 96 Stat. 2478; P.L. 98-216, Sec. 3(a)(4), Feb. 14, 1984, 98 Stat. 6.) 1996 Electronic Update (As amended P.L. 104-134, Title III, Sec. 31001(h), Apr. 26, 1996, 110 Stat. 1321-363.) [General Materials (GM) - References, Annotations, or Tables] HISTORICAL NOTES HISTORICAL AND STATUTORY NOTES Revision Notes and Legislative Reports 1966 Acts. In subsection (a), the words "head of the agency concerned" are substituted for "Secretary of the department concerned or the head of the agency or independent establishment concerned, or one of their designees". The words "an employee, a member of the armed forces, or a Reserve of the armed forces" are coextensive with and substituted for "an employee of the United States or any member of the Army, Navy, Air Force, Marine Corps, or Coast Guard, or a reserve component thereof" in view of the definitions in sections 2101 and 2105. The words "basic compensation" are omitted as included in "basic pay". In subsection (b), the words "head of each agency" are substituted for "Each Secretary of a department, or head of an agency or independent establishment, as appropriate". The words "Secretaries of the military departments" are substituted for Qualified State Tax References: Page 41 of 148 "Secretaries of the Army, Navy, and Air Force" to conform to the definition of "military department" in section 102. In subsection (c), the words "section 4837(d) or 9837(d) of title 10 or section 1007(b), (c) of title 37" are substituted for "the provisions of the Act of May 22, 1928 (ch. 676, 45 Stat. 698)" in section 4 of the Act of July 15, 1954, on authority of the Acts of Aug. 10, 1956, ch. 1041, Sec. 49(b), 70A Stat. 640, and Sept. 7, 1962, P.L. 87-649, Sec. 12(b), 76 Stat. 497. 1979 Acts. Senate Report No. 96-276, see 1979 U.S. Code Cong. and Adm. News, p. 931. 1982 Acts. House Report No. 97-651, see 1982 U.S. Code Cong. and Adm. News, p. 1895. Senate Report Nos. 97-378 and 97-287, see 1982 U.S. Code Cong. and Adm. News, p. 3377. 1983 Acts. Detailed Explanation prepared by the Office of the Law Revision Counsel, see 1982 U.S. Code Cong. and Adm. News, p. 4301. 1984 Acts. Detailed Explanation of H.R. 2727, see 1984 U.S. Code Cong. and Adm. News, p. 3. References in Text The Internal Revenue Code of 1986, referred to in subsecs. (a)(1) and (d), is set out in Title 26, Internal Revenue Code. Amendments 1996 Amendments. Subsec. (a)(1). P.L. 104-134, Sec. 31001(h)(A)(i), inserted provisions directing all Federal agencies to which debts are owed and which have outstanding delinquent debts to participate in a computer match at least annually with records of Federal employees to identify those who are delinquent, directing the Secretary of the Treasury to establish and maintain an interagency consortium to implement centralized salary offset computer matching, and authorizing agencies that perform such computer matching to charge a fee for the full cost of such services. Subsec. (a)(3). P.L. 104-134, Sec. 31001(h)(A)(iii), added par. (3). Former par. (3) redesignated (4). Subsec. (a)(4), (5). P.L. 104-134, Sec. 31001(h)(A)(ii), redesignated former pars. (3) and (4) as (4) and (5), respectively. Subsec. (a)(5)(B). P.L. 104-134, Sec. 31001(h)(A)(iv), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: "'agency' includes the United States Postal Service and the Postal Rate Commission." Subsec. (d). P.L. 104-134, Sec. 31001(h)(B), added subsec. Qualified State Tax References: Page 42 of 148 (d). 1984 Amendments. Subsec. (c). P.L. 98-216 substituted "section 3530(d) for "section 581d". 1983 Amendments. Subsec. (a)(3). P.L. 97-452, substituted "sections 3711 and 3716-3718 of title 31" for "the Federal Claims Collection Act of 1966 (31 U.S.C. 951 et seq.)". 1982 Amendments. Catchline. P.L. 97-365, Sec. 5(c), substituted "indebtedness to the United States" for "indebtedness because of erroneous payment". Subsec. (a). P.L. 97-365, Sec. 5(a), designated existing provisions as par. (1), in par. (1) as so designated substituted provisions relating to debts to which the United States is entitled to be repaid for provisions which had related to an indebtedness to the United States because of an erroneous payment made by an agency to or on behalf of an individual, added provisions relating to the notification of a debt by the head of another agency or his designee, substituted provisions authorizing the deduction of not to exceed 15 percent of disposable pay for provisions which had authorized the deduction of not to exceed two-thirds of the pay from which the deduction was made, and added pars. (2), (3), and (4). Subsec. (b). P.L. 97-365, Sec. 5(b), designated existing provisions as par. (1) and added par. (2). P.L. 97-258, Sec. 3(a)(12), substituted "3530(d)" for "581d". 1979 Amendments. Subsec. (b). P.L. 96-54 substituted "President" for "Director of the Bureau of the Budget". Effective Dates 1996 Acts. Amendment by P.L. 104-134 effective Apr. 26, 1996, see section 31001(a)(2)(A) of P.L. 104-134, set out as a note under section 3322 of Title 31, Money and Finance. 1979 Acts. Amendment by P.L. 96-54 effective July 12, 1979, see section 2(b) of P.L. 96-54, set out as a note under section 305 of this title. Savings Provisions For savings provisions relating to amendment by P.L. 98-216, see section 5(d) of P.L. 98-216, set out as a note preceding section 101 of Title 31, Money and Finance. Short Title 1982 Amendments. Section 1 of P.L. 97-365 provided: "That this Act [enacting sections 954 and 955 of former Title 31, Money and Finance, amending this section and section 552a of this title, section 1114 of Title 18, Crimes and Criminal Procedure, Qualified State Tax References: Page 43 of 148 sections 6103 and 7213 of Title 26, Internal Revenue Code, section 2415 of Title 28, Judiciary and Judicial Procedure, and sections 484, 951, and 952 of former Title 31, and enacting provisions set out as notes under this section and section 6103 of Title 26] may be cited as the 'Debt Collection Act of 1982'." Delegation of Functions Authority of the President under subsec. (b) of this section to approve regulations prescribed by the head of each agency to carry out this section and section 581d of Title 31, Money and Finance [31 U.S.C.A. 3530(d)], relating to installment deductions from pay for indebtedness because of erroneous payment, delegated to the Office of Personnel Management, see section 8(1) of Ex. Ord. No. 11609, July 22, 1971, 36 F.R. 13747, set out as a note under section 301 of Title 3, The President. Collection of Indebtedness of Employees of Federal Government Resulting From Action or Suit Brought Against Employee by United States P.L. 97-276, Sec. 124, Oct. 2, 1982, 96 Stat. 1195, provided that: "Notwithstanding any other provision of this joint resolution [P.L. 97-276], in the case of any employee of the Federal Government who is indebted to the United States, as determined by a court of the United States in an action or suit brought against such employee by the United States, the amount of the indebtedness may be collected in monthly installments, or at officially established regular pay period intervals, by deduction in reasonable amounts from the current pay account of the individual. The deductions may be made only from basic pay, special pay, incentive pay, or, in the case of an individual not entitled to basic pay, other authorized pay. Collection shall be made over a period not greater than the anticipated period of employment. The amount deducted for any period may not exceed one-fourth of the pay from which the deduction is made, unless the deduction of a greater amount is necessary to make the collection within the period of anticipated employment. If the individual retires or resigns, or if his employment otherwise ends, before collection of the amount of the indebtedness is completed, deduction shall be made from later payments of any nature due to the individual from the United States Treasury." Improvements in Debt Collection Procedures Under 1982 Amendments as Contained in Debt Collection Act of 1982 Inapplicable to Claims or Indebtedness Under Internal Revenue Code, Social Security Act, or Tariff Laws Section 8(e) of P.L. 97-365, as amended by P.L. 99-514, Sec. 2, Oct. 22, 1986, 100 Stat. 2095, provided that: "Except as otherwise provided in section 4 or 7 or the foregoing provisions of this section [amending sections 6103 and 7213 of Title 26, Internal Revenue Code, and enacting provisions set out as notes under section 6103 of Title 26], nothing in this Act (or in the amendments made by this Act) [see Short Title of 1982 Amendments note under this section] shall apply to claims or indebtedness arising under, or amounts payable under, the Internal Revenue Qualified State Tax References: Page 44 of 148 Code of 1986 [Title 26], the Social Security Act [section 301 et seq. of Title 42, The Public Health and Welfare], or the tariff laws of the United States [Title 19, Customs Duties]." REFERENCES CROSS REFERENCES Advisory Council on Historic Preservation employees subject to Department of the Interior regulations prescribed under this section, see 16 USCA 470m. Armed forces members provided same notice and opportunities as provided under this section for breach of lease or damage paid by military, see 10 USCA 1055. Food stamp program overissuance of coupons recovered from Federal pay as authorized by this section for purposes of -- Disposition of claims, see 7 USCA 2022. State plans of operation, see 7 USCA 2020. Student loans in default and referred to Secretary of Health and Human Services treated as debt subject to this section for purposes of -- Health professions education, see 42 USCA 292r. Nurse education, see 42 USCA 297b. LIBRARY REFERENCES Administrative Law Administrative personnel, see 5 CFR Parts 179, 550, and 1210. Agriculture, see 7 CFR Part 3. Banks and banking, see 12 CFR Parts 608 and 1408. Commerce and foreign trade, see 15 CFR Part 22. Commodity and securities exchanges, see 17 CFR Parts 141 and 204. Education, see 34 CFR Parts 31 and 32. Employees' benefits, see 20 CFR Part 361. Energy, see 10 CFR Part 16. Foreign relations, see 22 CFR Parts 34, 213, 309, 512, and 1007. Housing and urban development, see 24 CFR Part 17. Labor, see 29 CFR Parts 20, 1450, and 1600. Qualified State Tax References: Page 45 of 148 Mineral resources, see 30 CFR Part 870. Money and Finance, Treasury, see 31 CFR Part 5. National defense, see 32 CFR Part 1697. Panama Canal, see 35 CFR Part 256. Parks, forests, and public property, see 36 CFR Part 705. Pensions, bonuses, and veterans' relief, see 38 CFR Part 1. Postal Service, see 39 CFR Part 961. Protection of environment, see 40 CFR Part 13. Public welfare, see 45 CFR Parts 30, 607, 708, and 1179. Telecommunication, see 47 CFR Part 1. Transportation, see 49 CFR Parts 92 and 1017. American Digest System Recovery by government of compensation paid to officer, agent, or employee, see United States K39(14). Encyclopedias Recovery by government of compensation paid to officer, agent, or employee, see C.J.S. United States Sec. 50. Law Review and Journal Commentaries Due process in federal debt collection by offset: Two concepts and a case study. Martin B. White, 41 Okla.L.Rev. 195 (1988). ANNOTATIONS NOTES OF DECISIONS Constitutionality 1/2 Construction with other laws 1 Extreme financial hardship 7 Head of agency determination Head of agency determination - Generally 2 Head of agency determination - Discretion of agency head 3 Indebtedness for which deductions may be made Indebtedness for which deductions may be made - Generally 4 Qualified State Tax References: Page 46 of 148 Indebtedness for which deductions may be made - Armed forces members 5 Jurisdiction 6 1/2. Constitutionality Statute permitting Department of Education to collect student loan debts of federal employees via offset against their wages was rationally related to legitimate governmental purpose of securing repayment of federally insured student loans, and did not violate federal employee's equal protection rights. Sibley v. U.S. Dept. of Educ., N.D.Ill.1995, 913 F.Supp. 1181. 1. Construction with other laws Offsets against employee's final salary check and lump-sum leave payment are governed generally by section 3716 of Title 31, and fifteen percent limitation of this section is not applicable. 1985, 64 Op.Comp.Gen. 907. This section, with its implementing regulations, authorizes salary offset procedure not required by more specific provisions, such as sections 5522, 5705, and 5724 of this title. 1984, 64 Op.Comp.Gen. 142. This section does not require change in rule that debts arising from erroneous payments to Army enlisted men are "administratively ascertained" debts within purview of 4837 and 9837 of Title 10 and thus subject to remission by the Secretary of the Army under such sections. 1956, 35 Comp.Gen. 421. 2. Head of agency determination -- Generally It was invalid to withhold installments from salary of Air Force officer because of allegedly illegal dependency payments to his parents under this section requiring Secretary of Air Force or his designee to order withholding, where neither Secretary nor his designee made required determination. Arnold v. U.S., Ct.Cl.1968, 404 F.2d 953, 186 Ct.Cl. 117. 3. -- Discretion of agency head Order directing the withholding of installments from salary of Air Force officer because of allegedly illegal dependency payments to his parents was invalid, where the withholding order was issued without any exercise of discretion by the Air Force but solely as a mechanical response to Comptroller General's certificate of indebtedness. Arnold v. U.S., Ct.Cl.1968, 404 F.2d 953, 186 Ct.Cl. 117. 4. Indebtedness for which deductions may be made -- Generally After Air Force has been properly billed by Labor Department, an overpayment by Department's employee compensation fund to Air Force employee may be collected under this section as if it had been made directly by Air Force. 1982, 61 Op. Comp. Qualified State Tax References: Page 47 of 148 Gen. 450. Where federal employee was erroneously granted compensatory time off in excess of the hours for which he could have received overtime pay under the aggregate salary limitation provisions of section 5547 of this title, such employee's annual leave balance could not be charged with a compensatory time deduction without employee consent, but such amount could be recovered by means of offset. (1979) 58 Op. Comp. Gen. 571. 5. -- -- Armed forces members Statute [set out as a note under this section] providing 25% right of offset against "current pay account" of "any employee of the Federal Government" who is indebted to United States did not apply to members of armed forces. U.S. v. Tafoya, C.A.5 (Tex.) 1986, 803 F.2d 140. Where it was invalid to withhold installments from salary of Air Force officer because of allegedly illegal dependency payments to his parents because neither Secretary of Air Force nor his designee authorized such withholding, Secretary had no power years later through designee to direct the withholding. Arnold v. U.S., Ct.Cl.1968, 404 F.2d 953, 183 Ct.Cl. 117. 6. Jurisdiction Claim of retired Marine officer to amounts withheld monthly from his retirement pay on ground retired Marine officer had received overpayment of retirement pay constituted claim over which Court of Claims [now Court of Federal Claims] had exclusive jurisdiction, and, therefore, federal district court could not entertain claim for recovery of the amounts withheld. Gordon v. Shoup, C.A.D.C.1963, 316 F.2d 683, 115 U.S.App.D.C. 32. 7. Extreme financial hardship Federal government employee failed to show that 15% offset from wages proposed by Department of Education for repayment of student loan would impose "extreme financial hardship" on employee within meaning of statutory restriction on such offsets, where employee failed to provide medical records in support his claim that he had to eat four times a day at restaurants, to demonstrate extent to which his health insurance covered his $657 claimed monthly medical expenses, or to show that claimed monthly credit card expense related to charges incurred for essential subsistence expenses; unsupported expense claims were properly reduced or eliminated, in assessing what hardship, if any, would result from allowance of 15% offset against employee's wages. Sibley v. U.S. Dept. of Educ., N.D.Ill.1995, 913 F.Supp. 1181. 5 USCA 5514, Installment deduction for indebtedness to the United States ------------ Excerpt from pages 36778-36788 Qualified State Tax References: Page 48 of 148 Sec. 5516. Withholding District of Columbia income taxes (a) The Secretary of the Treasury, under regulations prescribed by the President, shall enter into an agreement with the Mayor of the District of Columbia within 120 days of a request for agreement from the Mayor. The agreement shall provide that the head of each agency of the United States shall comply with the requirements of subchapter II of chapter 15 of title 47, District of Columbia Code, in the case of employees of the agency who are subject to income taxes imposed by that subchapter and whose regular place of employment is within the District of Columbia. The agreement may not apply to pay of an employee who is not a resident of the District of Columbia as defined in subchapter II of chapter 15 of title 47, District of Columbia Code. In the case of pay for service as a member of the armed forces, the second sentence of this subsection shall be applied by substituting "who are residents of the District of Columbia" for "whose regular place of employment is within the District of Columbia". For the purpose of this subsection, "employee" has the meaning given it by section 1551c(z) of title 47, District of Columbia Code. (b) This section does not give the consent of the United States to the application of a statute which imposes more burdensome requirements on the United States than on other employers, or which subjects the United States or its employees to a penalty or liability because of this section. CREDIT(S) 1996 Main Volume (P.L. 89-554, Sept. 6, 1966, 80 Stat. 478; P.L. 90-623, Sec. 1(9), Oct. 22, 1968, 82 Stat. 1312; P.L. 94-455, Title XII, Sec. 1207(a)(2), Oct. 4, 1976, 90 Stat. 1705; P.L. 96-54, Sec. 2(a)(30), Aug. 14, 1979, 93 Stat. 383.) [General Materials (GM) - References, Annotations, or Tables] HISTORICAL NOTES HISTORICAL AND STATUTORY NOTES Revision Notes and Legislative Reports 1966 Acts. Section 2(c) "(z)" of the Act of Mar. 31, 1956, 70 Stat. 68 (section 1551c(z) of title 47, District of Columbia Code) contains a definition of "employee" that is applicable to this section. Accordingly, the last sentence of subsection (a) is added to preserve the application of the source law. Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report. Qualified State Tax References: Page 49 of 148 1968 Acts. Senate Report No. 1624, see 1968 U.S. Code Cong. and Adm. News, p. 4446. 1976 Acts. House Report Nos. 94-658 and 94-1380, Senate Report No. 94-938(Parts I and II), and House Conference Report No. 94-1515, see 1976 U.S. Code Cong. and Adm. News, p. 2897. 1979 Acts. Senate Report No. 96-276, see 1979 U.S. Code Cong. and Adm. News, p. 931. Amendments 1979 Amendments. Subsec. (a). P.L. 96-54 substituted "Mayor" for "Commissioner" wherever appearing therein. 1976 Amendments. P.L. 94-455 struck out "pay for service as a member of the armed forces, or to" following "The agreement may not apply to" and added provision that in the case of service as a member of the armed forces, the second sentence shall be applied by substituting "who are residents of the District of Columbia" for "whose regular place of employment is within the District of Columbia". 1968 Amendments. Subsec. (a). P.L. 90-623 substituted "Commissioner" for "Commissioners" in two instances. Effective Dates 1979 Acts. Amendment by P.L. 96-54 effective July 12, 1979, see section 2(b) of P.L. 96-54, set out as a note under section 305 of this title. 1976 Acts. Section 1207(f)(1) of P.L. 94-455 provided that: "The amendments made by subsection (a) [amending subsec. (a) of this section and section 5517(a) of this title] shall apply to wages withheld after the 120-day period following any request for an agreement after the date of the enactment of this Act [Oct. 4, 1976]." 1968 Acts. Amendment by P.L. 90-623 intended to restate without substantive change the law in effect on Oct. 22, 1968, see section 6 of P.L. 90-623, set out as a note under section 5334 of this title. REFERENCES CROSS REFERENCES Withholding of District of Columbia income taxes by -- Clerk and Sergeant at Arms of House of Representatives, see 2 USCA 60e-1a and 60e-1b. Secretary of Senate, see 2 USCA 60c-3. LIBRARY REFERENCES Qualified State Tax References: Page 50 of 148 Administrative Law Money and finance, Treasury, see 31 CFR Part 215. American Digest System Compensation of federal officers, agents, and employees; deductions and set-offs against pay, see United States K39(1) et seq., 39(10). Encyclopedias Compensation of federal officers, agents, and employees; deductions and set-offs against pay, see C.J.S. United States, sections 43 et seq., 49. ANNOTATIONS NOTES OF DECISIONS Constitutionality 1 1. Constitutionality There was no unlawful deprivation of equal protection in that Sec. 5517 of this title granted authority to officials to enter into and effectuate an agreement with State of New Mexico for withholding of New Mexico income tax from pay of plaintiff residents of El Paso, Texas, employed at federal enclave in New Mexico, while this section prevented Secretary from entering into an agreement with commissioners [now commissioner] of the District of Columbia for withholding District income tax from the pay of any federal employee not a resident of the District of Columbia. Lung v. O'Cheskey, D.C.N.M.1973, 358 F.Supp. 928, affirmed 94 S.Ct. 159, 414 U.S. 802, 38 L.Ed.2d 39. 5 USCA 5516, Withholding District of Columbia income taxes ------------ Excerpt from pages 36791-36793 UNITED STATES CODE ANNOTATED TITLE 5. GOVERNMENT ORGANIZATION AND EMPLOYEES PART III -- EMPLOYEES SUBPART D -- PAY AND ALLOWANCES CHAPTER 55 -- PAY ADMINISTRATION SUBCHAPTER II -- WITHHOLDING PAY Current through P.L. 104-194, approved 9-9-96 Sec. 5517. Withholding State income taxes Qualified State Tax References: Page 51 of 148 (a) When a State statute -- (1) provides for the collection of a tax either by imposing on employers generally the duty of withholding sums from the pay of employees and making returns of the sums to the State, or by granting to employers generally the authority to withhold sums from the pay of employees if any employee voluntarily elects to have such sums withheld; and (2) imposes the duty or grants the authority to withhold generally with respect to the pay of employees who are residents of the State; the Secretary of the Treasury, under regulations prescribed by the President, shall enter into an agreement with the State within 120 days of a request for agreement from the proper State official. The agreement shall provide that the head of each agency of the United States shall comply with the requirements of the State withholding statute in the case of employees of the agency who are subject to the tax and whose regular place of Federal employment is within the State with which the agreement is made. In the case of pay for service as a member of the armed forces, the preceding sentence shall be applied by substituting "who are residents of the State with which the agreement is made" for "whose regular place of Federal employment is within the State with which the agreement is made". (b) This section does not give the consent of the United States to the application of a statute which imposes more burdensome requirements on the United States than on other employers, or which subjects the United States or its employees to a penalty or liability because of this section. An agency of the United States may not accept pay from a State for services performed in withholding State income taxes from the pay of the employees of the agency. (c) For the purpose of this section, "State" means a State or territory or possession of the United States. (d) For the purpose of this section and sections 5516 and 5520, the terms "serve as a member of the armed forces" and "service as a member of the Armed Forces" include -- (1) participation in exercises or the performance of duty under section 502 of title 32, United States Code, by a member of the National Guard; and (2) participation in scheduled drills or training periods, or service on active duty for training, under section 10147 of title 10, United States Code, by a member of the Ready Reserve. CREDIT(S) 1996 Main Volume (P.L. 89-554, Sept. 6, 1966, 80 Stat. 478; P.L. 94-455, Title XII, Sec. 1207(a)(1), (b), (c), Oct. 4, 1976, 90 Stat. 1704, Qualified State Tax References: Page 52 of 148 1705; P.L. 100-180, Div. A, Title V, Sec. 505(1), Dec. 4, 1987, 101 Stat. 1086; P.L. 103-337, Div. A, Title XVI, Sec. 1677(a)(1), Oct. 5, 1994, 108 Stat. 3019.) [General Materials (GM) - References, Annotations, or Tables] HISTORICAL NOTES HISTORICAL AND STATUTORY NOTES Revision Notes and Legislative Reports 1966 Acts. NOTE -- Some parts of this form are wider than one screen. To view material that exceeds the width of this screen, use the right arrow key. To return to the original screen, use the left arrow key. In subsection (b), the words "after March 31, 1959" are omitted as executed. Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report. 1976 Acts. House Report Nos. 94-658 and 94-1380, Senate Report No. 94-938(Parts I and II), and House Conference Report No. 94-1515, see 1976 U.S. Code Cong. and Adm. News, p. 2897. 1987 Acts. House Report No. 100-58 and House Conference Report No. 100-446, see 1987 U.S. Code Cong. and Adm. News, p. 1018. 1994 Acts. House Report No. 103-499 and House Conference Report No. 103-701, see 1994 U.S. Code Cong. and Adm. News, p. 2091. Amendments 1994 Amendments. Subsec. (d)(2). P.L. 103-337, Sec. 1677(a)(1), substituted "section 10147 of title 10" for "section 270(a) of title 10". 1987 Amendments. Subsec. (d). P.L. 100-180, Sec. 505(1), struck out "do not" before "include". 1976 Amendments. Subsec. (a). P.L. 94-455, Sec. 1207(a)(1), (c), added in par. (1) provision relating to the grant to employers of the authority to withhold sums from the pay of employees if any employee voluntarily elects to have such sums withheld, inserted in par. (2) "or grants the authority" following "imposes the duty", and substituted in material Qualified State Tax References: Page 53 of 148 following par. (2) provisions that in the case of pay for service as a member of the armed forces, the preceding sentence shall be applied by substituting "who are residents of the State with which the agreement is made" for "whose regular place of Federal employment is within the State with which the agreement is made" for provision that the agreement may not apply to pay for service as a member of the armed forces. Subsec. (d). P.L. 94-455, Sec. 1207(b), added subsec. (d). Effective Dates 1994 Acts. Except as otherwise provided, amendment by section 1677(a)(1) of P.L. 103-337 effective Dec. 1, 1994, see section 1691 of P.L. 103-337, set out as a note under section 10001 of Title 10, Armed Forces. 1976 Acts. Amendment by section 1207(a)(1) of P.L. 94-455 applicable to wages withheld after the 120-day period following any request for an agreement after Oct. 4, 1976, see section 1207(f)(1) of P.L. 94-455, set out as a note under section 5516 of this title. Section 1207(f)(2) of P.L. 94-455 provided that: "The amendments made by subsections (b) and (c) [amending subsecs. (a)(1), (2) and adding subsec. (d) of this section] shall apply to wages withheld after the 120-day period following the date of the enactment of this Act [Oct. 4, 1976]." TEXT EXECUTIVE ORDERS EXECUTIVE ORDER NO. 10407 Ex. Ord. No. 10407, Nov. 7, 1952, 17 F.R. 10132, formerly set out as a note under this section, which related to regulations governing agreements concerning withholdings of state or territorial income taxes, was revoked by Ex. Ord. No. 11968, Jan. 31, 1977, 42 F.R. 6787, formerly set out as a note under section 5520 of this title. REFERENCES CROSS REFERENCES Military leave entitlements for Federal government and District of Columbia employees except as provided in this section, see 5 USCA 6323. Withholding of State income taxes by -- Architect of the Capitol, see 40 USCA 166b-5. Clerk and Sergeant at Arms of the House of Representatives, see 2 USCA 60e-1a and 60e-1b. Qualified State Tax References: Page 54 of 148 Secretary of Senate, see 2 USCA 60c-3. LIBRARY REFERENCES Administrative Law Money and finance, Treasury, see 31 CFR Part 215. American Digest System Compensation of federal officers, agents, and employees; deductions and set-offs against pay, see United States K39(1) et seq., 39(10). Encyclopedias Compensation of federal officers, agents, and employees; deductions and set-offs against pay, see C.J.S. United States, sections 43 et seq., 49. ANNOTATIONS NOTES OF DECISIONS Generally 3 Constitutionality 1 Jurisdiction 7 Law governing 2 Liability for taxes erroneously withheld 5 Sovereign immunity 6 States within section 4 1. Constitutionality There was no unlawful deprivation of equal protection in that this section granted authority to officials to enter into and effectuate an agreement with State of New Mexico for withholding of New Mexico income tax from pay of plaintiff residents of El Paso, Texas, employed at federal enclave in New Mexico, while Sec. 5516 of this title prevented Secretary from entering into an agreement with commissioners of the District of Columbia for withholding District income tax from the pay of any federal employee not a resident of the District of Columbia. Lung v. O'Cheskey, D.C.N.M.1973, 358 F.Supp. 928, affirmed 94 S.Ct. 154, 414 U.S. 802, 38 L.Ed.2d 39. 2. Law governing Power of defendant finance and accounting officer at federal enclave in New Mexico where plaintiffs were employed and of Secretary of the Treasury to enter into withholding agreements Qualified State Tax References: Page 55 of 148 and to withhold New Mexico income tax from plaintiffs' pay did not derive from state law and they were not acting under color of state law as required for a civil rights action. Lung v. O'Cheskey, D.C.N.M.1973, 358 F.Supp. 928, affirmed 94 S.Ct. 159, 414 U.S. 802, 38 L.Ed.2d 39. 3. Generally This section authorizing the Secretary of the Treasury to enter into agreements with the state as regards withholding of state income taxes from state residents who are employees of the federal government does not authorize imposition of a greater burden on the federal government than that imposed on the private employer as regards withholding of state income taxes. Clincher v. U.S., Ct.Cl.1974, 499 F.2d 1250, 205 Ct.Cl. 8, certiorari denied 95 S.Ct. 1427, 420 U.S. 991, 43 L.Ed.2d 672. 4. States within section The Commonwealth of Puerto Rico was not a "State or territory or possession of the United States," for purposes of statute authorizing Secretary of the Treasury to enter into agreement to withhold state income taxes from federal employees' wages, and, therefore, withholding agreement with Commonwealth of Puerto Rico was unlawful and void; Congress had amended similar, related statute in same Title to include Puerto Rico expressly but, in stark contrast, had never expressly authorized Secretary to enter into withholding agreements with Puerto Rico. Romero v. U.S., C.A.Fed. (Puerto Rico) 1994, 38 F.3d 1204. 5. Liability for taxes erroneously withheld Federal employees were not entitled, under Back Pay Act, to refund of any money which United States had paid over to Commonwealth of Puerto Rico pursuant to invalid income tax withholding agreement between Secretary of the Treasury and Commonwealth of Puerto Rico, but rather, could recover only those amounts which had been withheld but had not yet been paid. Romero v. U.S., C.A.Fed. (Puerto Rico) 1994, 38 F.3d 1204. United States was not liable to its Arizona and Montana Indian employees for state income taxes erroneously withheld from their salaries since a private employer would not be liable under Arizona or Montana law. Clincher v. U.S., Ct.Cl.1974, 499 F.2d 1250, 205 Ct.Cl. 8, certiorari denied 95 S.Ct. 1427, 420 U.S. 991, 43 L.Ed.2d 672. 6. Sovereign immunity Where defendant finance and accounting officer at federal enclave in New Mexico where plaintiff residents of El Paso, Texas, were employed and Secretary of the Treasury were acting within scope of authority granted them by Congress under statute in entering into and effectuating an agreement with the state of New Mexico for withholding of New Mexico income tax from pay of plaintiffs and were acting as authorized by a constitutional statute, claim against them, as individuals, regarding acts Qualified State Tax References: Page 56 of 148 performed in their official capacity was barred by doctrine of sovereign immunity. Lung v. O'Cheskey, D.C.N.M.1973, 358 F.Supp. 928, affirmed 94 S.Ct. 159, 414 U.S. 802, 38 L.Ed.2d 39. 7. Jurisdiction Court of claims [now Court of Federal Claims] had subject matter jurisdiction of action by seven American Indians, who were or had been United States employees on Indian reservations, seeking to recover amounts withheld from their wages by the federal government for state income taxes and paid over to the state. Clincher v. U.S., Ct.Cl.1974, 499 F.2d 1250, certiorari denied 95 S.Ct. 1427, 420 U.S. 991, 43 L.Ed.2d 672. 5 USCA 5517, Withholding State income taxes ------------ Excerpt from pages 36794-36799 UNITED STATES CODE ANNOTATED TITLE 5. GOVERNMENT ORGANIZATION AND EMPLOYEES PART III -- EMPLOYEES SUBPART D -- PAY AND ALLOWANCES CHAPTER 55 -- PAY ADMINISTRATION SUBCHAPTER II -- WITHHOLDING PAY Current through P.L. 104-194, approved 9-9-96 Sec. 5518. Deductions for State retirement systems; National Guard employees When -- (1) a State statute provides for the payment of employee contributions to a State employee retirement system or to a State sponsored plan providing retirement, disability, or death benefits, by withholding sums from the pay of State employees and making returns of the sums withheld to State authorities or to the person or organization designated by State authorities to receive sums withheld for the program; and (2) individuals employed by the Army National Guard and the Air National Guard, except employees of the National Guard Bureau, are eligible for membership in a State employee retirement system or other State sponsored plan; the Secretary of Defense, under regulations prescribed by the President, shall enter into an agreement with the State within 120 days of a request for agreement from the proper State official. The agreement shall provide that the Department of Defense shall comply with the requirements of State statute as to the individuals named by paragraph (2) of this section who are Qualified State Tax References: Page 57 of 148 eligible for membership in the State employee retirement system. The disbursing officials paying these individuals shall withhold and pay to the State employee retirement system or to the person or organization designated by State authorities to receive sums withheld for the program the employee contributions for these individuals. For the purpose of this section, "State" means a State or territory or possession of the United States including the Commonwealth of Puerto Rico. CREDIT(S) 1996 Main Volume (P.L. 89-554, Sept. 6, 1966, 80 Stat. 479.) [General Materials (GM) - References, Annotations, or Tables] HISTORICAL NOTES HISTORICAL AND STATUTORY NOTES Revision Notes and Legislative Reports 1966 Acts. The words "individuals employed by" and the word "individuals" are substituted for "civilian employees of" and "employees", respectively, in view of the definition of "employee" in section 2105 which is limited to those employed by the Government of the United States. The word "civilian" is omitted as unnecessary as military personnel are not "employed". The words "disbursing officials" are substituted for "disbursing officers" as the definition of "officer" in section 2104 excludes a member of a uniformed service. Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report. TEXT EXECUTIVE ORDERS EXECUTIVE ORDER NO. 10996 Feb. 16, 1962, 27 F.R. 1521 WITHHOLDING OF COMPENSATION FOR STATE AND STATE-SPONSORED EMPLOYEE RETIREMENT, DISABILITY, OR DEATH BENEFITS PROGRAMS By virtue of the authority vested in me by the act of June 15, 1956, as amended, 75 Stat. 496 (5 U.S.C. 84d) [now this section], and by section 301 of title 3 of the United States Code [section 301 of Title 3, The President], and as President of the United States, it is ordered as follows: Section 1. As used in this order, the term: Qualified State Tax References: Page 58 of 148 (a) "Employees" means civilian employees of the Army National Guard or Air National Guard of a State who are employed pursuant to section 709 of title 32 of the United States Code [section 709 of Title 32, National Guard], and paid from Federal, appropriated funds. (b) "State" means one of the United States, the Commonwealth of Puerto Rico, and any territory of the United States. Sec. 2. Each agreement between the Secretary of Defense and the Governor or other proper official of a State, pursuant to the provisions of the act of June 15, 1956, as amended, with respect to withholding of compensation of certain civilian employees of the Army National Guard and the Air National Guard for purposes of State or State-sponsored employee retirement, disability, or death benefits systems, shall be entered into by the Secretary of Defense within one hundred and twenty days of the receipt of a request therefor by the Secretary from the Governor or any other proper official of any State: Provided, that -- (a) the law of such State provides for the payment of employee contributions to such State or State-sponsored employee retirement, disability, or death benefits systems by withholding sums from the compensation of such State employees and making returns of such sums to officials of such State or organization designated by such officials to receive sums withheld for such programs; (b) civilian employees of the Army National Guard and the Air National Guard, other than those employed by the National Guard Bureau, are eligible for membership in a State retirement, disability, or death benefits system; and (c) each such agreement is consistent with the provisions of the said act of June 15, 1956, as amended, and of rules and regulations issued thereunder, and contains a clause that it shall be subject to any amendments of the said act, including amendments occurring after the effective date of such agreement. Sec. 3. Each such agreement shall: (a) Provide that the Secretary of the Army with respect to civilian employees of the Army National Guard, and the Secretary of the Air Force with respect to civilian employees of the Air National Guard, shall comply with the requirements of such State law in the case of employees subject to the said act of June 15, 1956, as amended, who are eligible for membership in such retirement, disability, or death benefits system for State employees; (b) Specify when the withholding of sums from the compensation of such State employees shall commence; and (c) Provide for procedures for the withholding, the filing of the returns, and the payment of the sums withheld from compensation to the officials of the State, or organization Qualified State Tax References: Page 59 of 148 designated by such officials to receive sums withheld for such programs, which procedures shall conform, so far as practicable, to the usual fiscal practices of the Department of the Army and the Department of the Air Force, respectively. Sec. 4. The Secretary of the Army with respect to civilian employees of the Army National Guard, and the Secretary of the Air Force with respect to civilian employees of the Air National Guard, shall designate, or provide for the designation of, the officers or employees whose duty it shall be to withhold sums from compensation, file required returns, and direct the payment of sums so withheld, in accordance with the terms of the agreements entered into between the Secretary of Defense and the States. Sec. 5. Nothing in this order, or in rules or regulations issued thereunder, or in any agreement entered into pursuant thereto, shall be construed as giving consent to the application of any provision of law of any State which has the effect of imposing more burdensome requirements upon the United States than it imposes upon departments, agencies, or political subdivisions of the State concerned, with respect to employees thereof who are members of the State or State-sponsored retirement, disability, or death benefits system, or which has the effect of subjecting the United States or any of its officers or employees to any penalty or liability. Sec. 6. I hereby delegate to the Secretary of Defense authority to prescribe such rules and regulations, not inconsistent herewith, as may be necessary to effectuate further the provisions of the said act of June 15, 1956, as amended, or of this order. Sec. 7. Except to the extent that they may be inconsistent with this order, all determinations, authorizations, regulations, rulings, certificates, orders, directives, contracts, agreements, and other actions made, issued, or entered into with respect to any function affected by this order and not revoked, superseded, or otherwise made inapplicable before the date of this order, shall continue in full force and effect until amended, modified, or terminated by appropriate authority. Sec. 8. This order supersedes Executive Order No. 10679 of September 20, 1956. JOHN F. KENNEDY REFERENCES LIBRARY REFERENCES Administrative Law National defense, see 32 CFR Part 79. American Digest System Qualified State Tax References: Page 60 of 148 Compensation of federal officers, agents, and employees; deductions and set-offs against pay, see United States K39(1) et seq., 39(10). Encyclopedias Compensation of federal officers, agents, and employees; deductions and set-offs against pay, see C.J.S. United States, sections 43 et seq., 49. 5 USCA 5518, Deductions for State retirement systems; National Guard employees ------------ Excerpt from pages 36800-36803 UNITED STATES CODE ANNOTATED TITLE 5. GOVERNMENT ORGANIZATION AND EMPLOYEES PART III -- EMPLOYEES SUBPART D -- PAY AND ALLOWANCES CHAPTER 55 -- PAY ADMINISTRATION SUBCHAPTER II -- WITHHOLDING PAY Current through P.L. 104-194, approved 9-9-96 Sec. 5520. Withholding of city or county income or employment taxes (a) When a city or county ordinance -- (1) provides for the collection of a tax by imposing on employers generally the duty of withholding sums from the pay of employees and making returns of the sums to a designated city or county officer, department, or instrumentality; and (2) imposes the duty to withhold generally on the payment of compensation earned within the jurisdiction of the city or county in the case of employees whose regular place of employment is within such jurisdiction; the Secretary of the Treasury, under regulations prescribed by the President, shall enter into an agreement with the city or county within 120 days of a request for agreement by the proper city or county official. The agreement shall provide that the head of each agency of the United States shall comply with the requirements of the city or county ordinance in the case of any employee of the agency who is subject to the tax and (i) whose regular place of Federal employment is within the jurisdiction of the city or county with which the agreement is made or (ii) is a resident of such city or county. The agreement may not apply to pay for service as a member of the Armed Forces (other than service described in section 5517(d) of this title). The Qualified State Tax References: Page 61 of 148 agreement may not permit withholding of a city or county tax from the pay of an employee who is not a resident of, or whose regular place of Federal employment is not within, the State in which that city or county is located unless the employee consents to the withholding. (b) This section does not give the consent of the United States to the application of an ordinance which imposes more burdensome requirements on the United States than on other employers or which subjects the United States or its employees to a penalty or liability because of this section. An agency of the United States may not accept pay from a city or county for services performed in withholding city or county income or employment taxes from the pay of employees of the agency. (c) For the purpose of this section -- (1) "city" means any unit of general local government which -- (A) is classified as a municipality by the Bureau of the Census, or (B) is a town or township which, in the determination of the Secretary of the Treasury -- (i) possesses powers and performs functions comparable to those associated with municipalities, (ii) is closely settled, and (iii) contains within its boundaries no incorporated places, as defined by the Bureau of the Census, within the political boundaries of which 500 or more persons are regularly employed by all agencies of the Federal Government; (2) "county" means any unit of local general government which is classified as a county by the Bureau of the Census and within the political boundaries of which 500 or more persons are regularly employed by all agencies of the Federal Government; (3) "ordinance" means an ordinance, order, resolution, or similar instrument which is duly adopted and approved by a city or county in accordance with the constitution and statutes of the State in which it is located and which has the force of law within such city or county; and (4) "agency" means -- (A) an Executive agency; (B) the judicial branch; and (C) the United States Postal Service. CREDIT(S) Qualified State Tax References: Page 62 of 148 1996 Main Volume (Added P.L. 93-340, Sec. 1(a), July 10, 1974, 88 Stat. 294, and amended P.L. 94-358, Sec. 1, July 12, 1976, 90 Stat. 910; P.L. 95-30, Title IV, Sec. 408(a), May 23, 1977, 91 Stat. 157; P.L. 95-365, Sec. 1, Sept. 15, 1978, 92 Stat. 599; P.L. 100-180, Div. A, Title V, Sec. 505(2), Dec. 4, 1987, 101 Stat. 1086.) [General Materials (GM) - References, Annotations, or Tables] HISTORICAL NOTES HISTORICAL AND STATUTORY NOTES Revision Notes and Legislative Reports 1974 Acts. Senate Report No. 93-946, see 1974 U.S. Code Cong. and Adm. News, p. 3450. 1976 Acts. House Report No. 94-1008, see 1976 U.S. Code Cong. and Adm. News, p. 1680. 1977 Acts. Senate Report No. 95-66 and House Conference Report No. 95-263, see 1977 U.S. Code Cong. and Adm. News, p. 185. 1978 Acts. Senate Report No. 95-1083, see 1978 U.S. Code Cong. and Adm. News, p. 1375. 1987 Acts. House Report No. 100-58 and House Conference Report No. 100-446, see 1987 U.S. Code Cong. and Adm. News, p. 1018. Amendments 1987 Amendments. Subsec. (a). P.L. 100-180, Sec. 505(2), inserted "(other than service described in section 5517(d) of this title)" after "Armed Forces" in penultimate sentence. 1978 Amendments. Subsec. (a). P.L. 95-365 designated existing provisions as cl. (i), and added ", or whose regular place of Federal employment is not within," following "not a resident of", and added cl. (ii). 1977 Amendments. P.L. 95-30, Sec. 408(a)(1), inserted "or county" following "city" in the section catchline. Subsec. (a). P.L. 95-30, Sec. 408(a)(2), (3), substituted "city or county" for "city" in the introductory provisions preceding par. (1), in par. (2), and in the provisions following par. (2), and, in par. (1), substituted "a designated city or county officer, department, or instrumentality" for "the city". Subsec. (b). P.L. 95-30, Sec. 408(a)(2), substituted "city or county" for "city". Qualified State Tax References: Page 63 of 148 Subsec. (c). P.L. 95-30, Sec. 408(a)(4), (5), added pars. (2) and (3), and redesignated former par. (2) as (4). 1976 Amendments. Subsec. (c)(1). P.L. 94-358 substituted provision defining a city, for purposes of this section, as any unit of general local government which is classified a municipality by the Bureau of the Census, or is a town or township which in the opinion of the Secretary of the Treasury possesses powers and performs functions comparable to those associated with municipalities, is closely settled, and contains within its boundaries no incorporated places, as defined by the Bureau of the Census, within the political boundaries of which five hundred or more persons are regularly employed by all agencies of the Federal Government, for provision defining a city, for purposes of this section, as a city which is duly incorporated under the laws of a State and within the political boundaries of which five hundred or more persons are regularly employed by all agencies of the Federal Government. Effective Dates 1978 Acts. Section 2 of P.L. 95-365 provided that: "The amendments made by the first section of this Act [amending subsec. (a) of this section] shall take effect on the 90th day after the date of the enactment of this Act [Sept. 15, 1978]." 1977 Acts. Section 408(c) of P.L. 95-30 provided that: "The amendments made by this section [amending this section] shall take effect on the date of enactment of this Act [May 23, 1977]." 1976 Acts. Section 2 of P.L. 94-358 provided that: "The amendment made by the first section of this Act [amending subsec. (c)(1) of this section] shall take effect on the date of the enactment of this Act [July 12, 1976]." 1974 Acts. Section 3 of P.L. 93-340 provided that: "This section shall become effective on the date of enactment of this Act [July 10, 1974]. The provisions of the first section and section 2 of this Act [enacting this section and amending section 410(b)(1) of Title 39, Postal Service] shall become effective on the ninetieth day following the date of enactment [July 10, 1974]." TEXT EXECUTIVE ORDERS EXECUTIVE ORDER NO. 11833 Ex. Ord. No. 11833, Jan. 13, 1975, 40 F.R. 2673, formerly set out as a note under this section, which related to the withholding of city income or employment taxes by federal agencies, was revoked by Ex. Ord. No. 11863, June 12, 1975, 40 F.R. 25431, formerly set out as a note under this section. EXECUTIVE ORDER NO. 11863 Qualified State Tax References: Page 64 of 148 Ex. Ord. No. 11863, June 12, 1975, 40 F.R. 25431, formerly set out as a note under this section, which related to the withholding of city income or employment taxes by federal agencies, was revoked by Ex. Ord. No. 11968, Jan. 31, 1977, 42 F.R. 6787, formerly set out as a note under this section. EXECUTIVE ORDER NO. 11968 Ex. Ord. No. 11968, Jan. 31, 1977, 42 F.R. 6787, formerly set out as a note under this section, which related to the withholding of District of Columbia, state and city income or employment taxes, was revoked by Ex. Ord. No. 11997, June 22, 1977, 42 F.R. 31759, set out under this section. EXECUTIVE ORDER NO. 11997 June 22, 1977, 42 F.R. 31759 WITHHOLDING OF DISTRICT OF COLUMBIA, STATE, CITY AND COUNTY INCOME OR EMPLOYMENT TAXES By virtue of the authority vested in me by Sections 5516, 5517 and 5520 of Title 5 of the United States Code [sections 5516, 5517 of this title and this section], and Section 301 of Title 3 of the United States Code [section 301 of Title 3, The President], and as President of the United States of America, in order to authorize the Secretary of the Treasury to provide for the withholding of county income or employment taxes as authorized by Section 5520 of Title 5 of the United States Code as amended by Section 408 of Public Law 95-30 [this section], as well as to provide for the withholding of District of Columbia, State and city income or employment taxes, it is hereby ordered as follows: Section 1. Whenever the Secretary of the Treasury enters into an agreement pursuant to Sections 5516, 5517 or 5520 of Title 5 of the United States Code [sections 5516, 5517 of this title or this section], with the District of Columbia, a State, a city or a county, as the case may be, with regard to the withholding, by an agency of the United States, hereinafter referred to as an agency, of income or employment taxes from the pay of Federal employees or members of the Armed Forces, the Secretary of the Treasury shall ensure that each agreement is consistent with those sections and regulations, including this Order, issued thereunder. Sec. 2. Each agreement shall provide (a) when tax withholding shall begin, (b) that the head of an agency may rely on the withholding certificate of an employee or a member of the Armed Forces in withholding taxes, (c) that the method for calculating the amount to be withheld for District of Columbia, State, city or county income or employment taxes shall produce approximately the tax required to be withheld by the District of Columbia or State law, or city or county ordinance, whichever is applicable, and (d) that procedures for the withholding, filing of returns, and payment of the withheld taxes to the District of Columbia, a State, a city or a county shall conform to the usual Qualified State Tax References: Page 65 of 148 fiscal practices of agencies. Any agreement affecting members of the Armed Forces shall also provide that the head of an agency may rely on the certificate of legal residence of a member of the Armed Forces in determining his or her residence for tax withholding purposes. No agreement shall require the collection by an agency of delinquent tax liabilities of an employee or a member of the Armed Forces. Sec. 3. The head of each agency shall designate, or provide for the designation of, the officers or employees whose duty it shall be to withhold taxes, file required returns, and direct payment of the taxes withheld, in accordance with this Order, any regulations prescribed by the Secretary of the Treasury, and the new applicable agreement. Sec. 4. The Secretary of the Treasury is authorized to prescribe additional regulations to implement Sections 5516, 5517 and 5520 of Title 5 of the United States Code [sections 5516, 5517 of this title and this section], and this Order. Sec. 5. Executive Order No. 11968 of January 31, 1977, is hereby revoked. However, all actions heretofore taken by the President or his delegates in respect of the matters affected by this Order and in force at the time of the issuance of this Order, including any regulations prescribed or approved by the President or his delegates in respect of such matters and any existing agreements approved by his delegates, shall, except as they may be inconsistent with the provisions of this Order, remain in effect until amended, modified, or revoked pursuant to the authority conferred by this Order, unless sooner terminated by operation of law. JIMMY CARTER REFERENCES CROSS REFERENCES Applicability of this section to the Postal Service, see 39 USCA 410. LIBRARY REFERENCES American Digest System Compensation of federal officers, agents, and employees; deductions and set-offs against pay, see United States K39(1) et seq., 39(10). Encyclopedias Compensation of federal officers, agents, and employees; deductions and set-offs against pay, see C.J.S. United States, sections 43 et seq., 49. ANNOTATIONS Qualified State Tax References: Page 66 of 148 NOTES OF DECISIONS Purpose 1 1. Purpose Enactment of the withholding procedure for city income and employment taxes imposed upon federal employees was not intended by Congress to modify in any substantive manner the liability of federal employees for local taxes. U.S. v. City and County of Denver, D.C.Colo.1983, 573 F.Supp. 686. 5 USCA 5520, Withholding of city or county income or employment taxes ------------ Excerpt from pages 36805-36809 UNITED STATES CODE ANNOTATED TITLE 5. GOVERNMENT ORGANIZATION AND EMPLOYEES PART III -- EMPLOYEES SUBPART D -- PAY AND ALLOWANCES CHAPTER 55 -- PAY ADMINISTRATION SUBCHAPTER III -- ADVANCEMENT, ALLOTMENT, AND ASSIGNMENT OF PAY Current through P.L. 104-194, approved 9-9-96 Sec. 5521. Definitions For the purpose of this subchapter -- (1) "agency" means -- (A) an Executive agency; (B) the judicial branch; (C) the Library of Congress; (D) the Government Printing Office; and (E) the government of the District of Columbia; (2) "employee" means an individual employed in or under an agency; (3) "head of each agency" means -- (A) the Director of the Administrative Office of the United States Courts with respect to the judicial branch; and (B) the Mayor of the District of Columbia with respect to Qualified State Tax References: Page 67 of 148 the government of the District of Columbia; and (4) "United States", when used in a geographical sense, means the several States and the District of Columbia. CREDIT(S) 1996 Main Volume (P.L. 89-554, Sept. 6, 1966, 80 Stat. 479; P.L. 90-623, Sec. 1(10), Oct. 22, 1968, 82 Stat. 1312; P.L. 96-54, Sec. 2(a)(31), Aug. 14, 1979, 93 Stat. 383.) [General Materials (GM) - References, Annotations, or Tables] HISTORICAL NOTES HISTORICAL AND STATUTORY NOTES Revision Notes and Legislative Reports 1966 Acts. In paragraph (1), the word "agency" is substituted for "department". The term "Executive agency" is substituted for the reference to "each executive department of the Government of the United States of America; each agency or independent establishment in the executive branch of such Government; each corporation wholly owned or controlled by such Government" in former section 3071(1)(A)-(C). Paragraph (2) is added for clarity and in view of the fact that the definition of "employee" in section 2105 does not include individuals employed by the government of the District of Columbia. In paragraph (3), the term "department head" is omitted as unnecessary. In paragraph (4), the words "of the United States of America" are omitted as unnecessary. Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report. 1968 Acts. Senate Report No. 1624, see 1968 U.S. Code Cong. and Adm. News, p. 4446. 1979 Acts. Senate Report No. 96-276, see 1979 U.S. Code Cong. and Adm. News, p. 931. Amendments 1979 Amendments. Par. (3)(B). P.L. 96-54 substituted "Mayor" for "Commissioner". Qualified State Tax References: Page 68 of 148 1968 Amendments. Par. (3)(B). P.L. 90-623 substituted "Commissioner" for "Board of Commissioners". Effective Dates 1979 Acts. Amendment by P.L. 96-54 effective July 12, 1979, see section 2(b) of P.L. 96-54, set out as a note under section 305 of this title. 1968 Acts. Amendment by P.L. 90-623 intended to restate without substantive change the law in effect on Oct. 22, 1968, see section 6 of P.L. 90-623, set out as a note under section 5334 of this title. REFERENCES LIBRARY REFERENCES American Digest System Compensation of federal officers, agents, and employees in general, see United States K39(1) et seq. Encyclopedias Compensation of federal officers, agents, and employees in general, see C.J.S. United States Sec. 43 et seq. 5 USCA 5521, Definitions ------------ Excerpt from pages 36816-36817 UNITED STATES CODE ANNOTATED TITLE 5. GOVERNMENT ORGANIZATION AND EMPLOYEES PART III -- EMPLOYEES SUBPART D -- PAY AND ALLOWANCES CHAPTER 55 -- PAY ADMINISTRATION SUBCHAPTER III -- ADVANCEMENT, ALLOTMENT, AND ASSIGNMENT OF PAY Current through P.L. 104-194, approved 9-9-96 Sec. 5527. Regulations (a) To the extent practicable in the public interest, the President shall coordinate the policies and procedures of the respective Executive agencies under this subchapter. (b) The President, with respect to the Executive agencies, the head of the agency concerned, with respect to the appropriate agency outside the executive branch, and the District of Columbia Council, with respect to the government of the District of Qualified State Tax References: Page 69 of 148 Columbia, shall prescribe and issue, or provide for the formulation and issuance of, regulations necessary and appropriate to carry out the provisions, accomplish the purposes, and govern the administration of this subchapter. (c) The head of each Executive agency may prescribe and issue regulations, not inconsistent with the regulations of the President issued under subsection (b) of this section, necessary and appropriate to carry out his functions under this subchapter. CREDIT(S) 1996 Main Volume (P.L. 89-554, Sept. 6, 1966, 80 Stat. 481; P.L. 90-623, Sec. 1(11), Oct. 22, 1968, 82 Stat. 1312.) [General Materials (GM) - References, Annotations, or Tables] HISTORICAL NOTES HISTORICAL AND STATUTORY NOTES Revision Notes and Legislative Reports 1966 Acts. In subsection (b), the last sentence of former section 3076, which provided for the issuance of the regulations not later than December 25, 1961, and the effective date of the regulations as not later than March 25, 1962, is omitted as executed. Standard changes are made to conform with the definitions applicable and the style of this title as outlined in the preface to the report. 1968 Acts. Senate Report No. 1624, see 1968 U.S. Code Cong. and Adm. News, p. 4446. Amendments 1968 Amendments. Subsec. (b). P.L. 90-623 inserted reference to the District of Columbia Council, with respect to the government of the District of Columbia. Effective Dates 1968 Acts. Amendment by P.L. 90-623 intended to restate without substantive change the law in effect on Oct. 22, 1968, see section 6 of P.L. 90-623, set out as a note under section 5334 of this title. TEXT EXECUTIVE ORDERS EXECUTIVE ORDER NO. 10982 Qualified State Tax References: Page 70 of 148 Dec. 25, 1961, 27 F.R. 3, as amended by Ex. Ord. No. 12107, Dec. 28, 1978, 44 F.R. 1055; Ex. Ord. No. 12748, Feb. 1, 1991, 56 F.R. 4521 ADMINISTRATION OF PROVISIONS OF CHAPTER By virtue of the authority vested in me by the act of September 26, 1961 (75 Stat. 662) [now this subchapter] and by section 301 of title 3 of the United States Code [section 301 of Title 3, The President], and as President of the United States, it is ordered as follows: Section 1. As used in this order: (a) The term "the act" means the act of September 26, 1961 (Public Law 87-304), 75 Stat. 662 [now this subchapter]. (b) The term "Federal agency" means any executive department of the Government of the United States of America, any agency or independent establishment in the executive branch of the Government, and any corporation wholly owned or controlled by the Government. (c) The term "foreign area" means any area (including the Trust Territory of the Pacific Islands) situated outside (1) the United States (including the District of Columbia), (2) the Commonwealth of Puerto Rico, (3) the Canal Zone, and (4) any territory or possession of the United States. Sec. 2. (a) Except as otherwise provided by section 2(b) and section 3 (c) of this order, the Secretary of State in respect of civilian employees of Federal agencies who are located in foreign areas immediately prior to an emergency evacuation, and the Office of Personnel Management in respect of all other civilian employees of Federal agencies, are hereby designated and empowered, without the approval, ratification, or other action of the President, to perform the functions conferred upon the President by section 3(a), section 3(b), and section 6(a) of the act [now sections 5523(a) and 5523(b) of this title and subsec. (a) of this section]. (b) The Office of Personnel Management is hereby designated and empowered to perform the functions conferred upon the President by the provisions of section 5527 of title 5, United States Code [this section], with respect to allotments and assignments authorized by section 5525 of title 5, United States Code [section 5525 of this title], and advance payments to new appointees authorized by section 5524a of title 5, United States Code [section 5524a of this title], as added by section 107(a) of the Federal Employees Pay Comparability Act of 1990, as incorporated in section 529 of Public Law 101-509. Sec. 3. The following regulations are hereby prescribed as necessary and appropriate to carry out the provisions, accomplish the purposes, and govern the administration of the act: Qualified State Tax References: Page 71 of 148 (a) To the maximum extent practicable, the Secretary of State, the Office of Personnel Management, and the heads of other Federal agencies shall exercise their authority under the act and this order so that employees of different Federal agencies evacuated from the same geographic area under the same general circumstances may be treated uniformly. (b) Advance payments of compensation, allowances, and differentials, as authorized by section 2 of the act [now section 5522 of this title], shall be held to the minimum period during which the order for evacuation is anticipated to continue, and shall in no event be made for a period of more than thirty days. (c) It is hereby determined to be in the interest of the United States that payments of monetary amounts as authorized by section 3 of the act [now section 5523 of this title] to and for the account of an employee whose evacuation is ordered and who is prevented from performing the duties of his position, under the circumstances set forth in section 3 of the act [now section 5523 of this title], should be extended beyond sixty days for not more than one hundred and twenty additional days only upon determination, pursuant to regulations of the head of the Federal agency concerned, that such additional payments are reasonably necessary to maintain a civilian staff available for performance of duty. Such payments of monetary amounts under the authority of section 3 of the act [now section 5523 of this title] shall be terminated as of such dates as may be determined by the Secretary of State or the Office of Personnel Management, as appropriate, but not later than the date on which an employee resumes his duties at the post from which he has been evacuated or is assigned to another position. Sec. 4. (a) The head of each Federal agency shall issue as soon as practicable such regulations as may be necessary and appropriate to carry out his functions under the act and this order. (b) In order to coordinate the policies and procedures of the executive branch of the Government, all regulations of any Federal agency prepared for issuance under the provisions of section 6(c) of the act [now subsection (c) of this section], and section 4(a) of this order shall be submitted for prior approval to the Secretary of State, or to the Office of Personnel Management, as may be appropriate, under section 2 of this order. The Secretary of State and the Office of Personnel Management shall review such regulations for conformance with the purpose and intent of the act and of the regulations contained in section 3 of this order. No Federal agency shall make any payment under the provisions of the act or this order until such regulations have been approved by the Secretary of State, or the Office of Personnel Management, as appropriate. REFERENCES LIBRARY REFERENCES Administrative Law Qualified State Tax References: Page 72 of 148 Administrative personnel, see 5 CFR Part 550. American Digest System Compensation of federal officers, agents, and employees in general, see United States K39(1) et seq. Encyclopedias Compensation of federal officers, agents, and employees in general, see C.J.S. United States Sec. 43 et seq. 5 USCA 5527, Regulations ------------ Excerpt from pages 36831-36834 UNITED STATES CODE ANNOTATED TITLE 26. INTERNAL REVENUE CODE SUBTITLE F -- PROCEDURE AND ADMINISTRATION CHAPTER 65 -- ABATEMENTS, CREDITS, AND REFUNDS SUBCHAPTER B -- RULES OF SPECIAL APPLICATION Current through P.L. 104-194, approved 9-9-96 Sec. 6414. Income tax withheld In the case of an overpayment of tax imposed by chapter 24, or by chapter 3, refund or credit shall be made to the employer or to the withholding agent, as the case may be, only to the extent that the amount of such overpayment was not deducted and withheld by the employer or withholding agent. CREDIT(S) 1989 Main Volume (Aug. 16, 1954, c. 736, 68A Stat. 798.) [General Materials (GM) - References, Annotations, or Tables] HISTORICAL NOTES HISTORICAL AND STATUTORY NOTES Revision Notes and Legislative Reports 1954 Act. House Report No. 1337, Senate Report No. 1622, and Conference Report No. 2543, see 1954 U.S.Code Cong. and Adm.News, pp. 4560, 5331. 26 USCA 6414, Income tax withheld Qualified State Tax References: Page 73 of 148 ------------ Excerpt from page 185228 Sec. 1464. Refunds and credits with respect to withheld tax Where there has been an overpayment of tax under this chapter, any refund or credit made under chapter 65 shall be made to the withholding agent unless the amount of such tax was actually withheld by the withholding agent. 26 USCA 1464, Refunds and credits with respect to withheld tax ------------ Excerpt from page 179978 [a](16) Withholding agent. -- The term "withholding agent" means any person required to deduct and withhold any tax under the provisions of section 1441, 1442, 1443, or 1461. 26 USCA 7701, Definitions ------------ Excerpt from page 188548 CODE OF FEDERAL REGULATIONS TITLE 26 -- INTERNAL REVENUE CHAPTER I -- INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY SUBCHAPTER F -- PROCEDURE AND ADMINISTRATION PART 301 -- PROCEDURE AND ADMINISTRATION COLLECTION SEIZURE OF PROPERTY FOR COLLECTION OF TAXES Current through January 1, 1997; 61 F.R. 69366 s 301.6363-1 State agreements. (a) Notice of election. If a State elects to enter into a State agreement it shall file notice of such election with the Secretary or his delegate. The notice of election shall include the following: (1) Statement by the Governor. A written statement by the Governor of the electing State: (i) Requesting that the Secretary enter into a State agreement, and (ii) Binding the Governor and his successors in office to notify the Secretary or his delegate immediately of the enactment, between the time of the filing of the notice of Qualified State Tax References: Page 74 of 148 election and the time of the execution of the State agreement, of any law of that State which meets the description given in any of the subdivisions of subparagraph (2) of this paragraph (a), whether or not such law is intended to be administered by the United States pursuant to subchapter E. (2) Copy of State laws. Certified copies of all laws of that State described in any of the following subdivisions of this subparagraph, and a specification of laws described in subdivision (i) of this subparagraph as "subchapter E laws", of laws described in subdivision (ii) as "other tax laws", of laws described in subdivision (iii) as "non-tax laws", and of laws described in subdivision (iv) as "interstate cooperation laws": (i) All of the State individual income tax laws (including laws relating to the collection or administration of such taxes or to the prosecution of alleged civil or criminal violations with respect to such taxes) which the State would expect the United States to administer pursuant to subchapter E if the State agreement is executed as requested. In order to have a valid notice, the State must have a tax which would meet the requirements for qualification specified in section 6362 and the regulations thereunder if a State agreement were in effect with respect thereto, with no conditions attached to the effectiveness of such tax other than the execution of a State agreement. Such tax must be effective no later than the January 1 specified in the State's notice of election as the date as of which subchapter E is desired to become applicable to the electing State, except that such effective date shall be deferred to the date provided in the State agreement for the beginning of applicability of subchapter E to the State, if the latter date is different from the date specified in the notice of election. (ii) All of the State income tax laws applicable to individuals (including laws relating to the collection or administration of such taxes or to the prosecution of alleged civil or criminal violations with respect to such taxes) which the State would not expect the United States to administer but which may be in effect simultaneously (for any period of time) with the State agreement. (iii) All of the State laws other than individual income tax laws which provide for the making of any payments by the State based on one or more criteria which the State may desire to verify by reference to information contained in returns of qualified taxes. (iv) All of the State laws which may be in effect simultaneously (for any period of time) with the State agreement and which provide for cooperation or reciprocal agreement between the electing State and another State with respect to income taxes applicable to individuals. (3) Approval by legislature or authorization by constitutional amendment. A certified copy of an Act or Resolution of the legislature of the electing State in which the legislature affirmatively expresses its approval of the State's Qualified State Tax References: Page 75 of 148 entry into a State agreement, or a certified copy of an amendment to the constitution of such State by which the voters of the State affirmatively authorize such entry. (4) Opinion by State Attorney General or judgment of highest court. A written statement by the State Attorney General to the effect that, in his opinion, no provision of the State's Constitution would be violated by the State law's incorporation by reference of the Federal individual income tax laws and regulations, as amended from time to time, by the Federal prosecution and trial of individuals who are alleged to have committed crimes with respect to the State's qualified tax (when it goes into effect as such), or by any other provision relating to such tax, considered as of the time it is being collected and administered by the Federal Government pursuant to subchapter E. However, if such a statement is not included in the notice of election, a judgment of the highest court of the State to the same effect may be submitted in its place. (5) Effective date. A written specification of the January as of which subchapter E is desired to become applicable to the electing State. (b) Rules relating to time for filing notice of election. An electing State must file its notice of election more than 6 months prior to the January 1 as of which the notice specifies that the provisions of subchapter E are desired to become applicable to such State. Thus, for example, if the date specified in the notice is January 1, 1979, the notice must be filed no later than June 30, 1978. However, because under the provisions of section 204(b) of the Federal-State Tax Collection Act of 1972 (86 Stat. 945), as amended by section 2116(a) of the Tax Reform Act of 1976 (90 Stat. 1910), the provisions of subchapter E will initially take effect on the first January 1 which is more than 1 year after the first date on which at least one State has filed a notice of its election (see s 301.6361-5), the notice of an election which causes subchapter E to initially take effect must be filed with the Secretary or his delegate more than 1 year prior to the January 1 as of which such notice specifies that the provisions of subchapter E are desired to become applicable to such State. Thus, for example, if such an initially electing State desires to elect subchapter E as of January 1, 1979, its notice must be filed no later than December 31, 1977. For purposes of this section, if the notice of election is sent by either registered or certified mail to the Secretary of the Treasury, Washington, D.C. 20220, then it shall be deemed to be filed on the date of mailing; otherwise, the notice of election shall be deemed to be filed when it is received by the Secretary or his delegate. (c) Procedures relating to defects in notice or tax laws. If a State has filed a notice of election, then the Secretary shall, within 90 days after the notice is filed, notify the Governor of such State in writing of any defect in the notice of election which prevents it from being valid, and of any defect in the State's tax laws which causes the tax submitted to fail to meet the requirements for qualification specified in section 6362 Qualified State Tax References: Page 76 of 148 and the regulations thereunder, other than the fact that no State agreement is in effect with respect thereto. Any such defect of which the Secretary does not notify the Governor within such 90- day period is waived. The Secretary or his delegate may, in his discretion, permit any of such defects of which the Governor is timely notified to be cured retroactively to the date of the filing of the notice of election, by amendment of the notice or the State law. Judicial review of the Secretary's determination that the notice of election or the tax laws, or both, contain defects, may be obtained as set forth in section 6363(d) and s 301.6363-4. (d) Execution and contents of State agreement. If the Secretary does not timely notify the Governor of a defect in the notice of election or in the State's tax laws, as provided in paragraph (c) of this section, or if, as provided in such paragraph, all such defects have been cured retroactively, then the Secretary shall enter into a State agreement. The agreement shall include the following elements: (1) Effective date. The agreement shall specify the January 1 as of which subchapter E will commence to be applicable to the State. Such date shall be the same as that specified in the notice of election pursuant to paragraph (a)(5) of this section, unless the parties agree to a different January 1, except that in no event shall a State agreement executed after November 1 specify the next January 1. (2) Obligation of Governor to notify the United States of changes in pertinent State laws. The agreement shall require the Governor of the State, and his successors in office, to notify the Secretary or his delegate within 30 days of the enactment of any law of the State, after the execution of the agreement, of a type described in paragraph (a)(2) of this section. (3) Obligation of Governor to furnish to the United States information needed to administer State tax laws. The agreement shall require the Governor and his successors to furnish to the Secretary or his delegate any information needed by the Federal Government to administer the State tax laws. Such information shall include, for example, a list (which shall be maintained on a current basis) of those obligations of the State or its political subdivisions described in section 103(a)(1) from which the interest is not subject to the qualified taxes of the State. (4) Identification of State official to act as liaison with Federal Government. The agreement shall include a designation by the Governor of the State official or officials with whom the Secretary or his delegate should coordinate in connection with any questions or problems which may arise during the period for which the State agreement is effective, including those which may result from changes or contemplated changes in pertinent State laws. (5) Identification of State official to receive transferred funds. The agreement shall include a designation by the Governor of the State official who shall initially receive the funds on Qualified State Tax References: Page 77 of 148 behalf of the State when they are transferred pursuant to section 6361(c) and s 301.6361-3. (6) Other obligations. If the Secretary and the Governor both so agree, the agreement shall provide for additional obligations. (e) State agreement superseding certain other agreements. For the period of its effectiveness, a State agreement shall supersede an otherwise effective agreement entered into by the State and the Secretary for the withholding of State income taxes from the compensation of Federal employees pursuant to 5 U.S.C. 5517 (or pursuant to 5 U.S.C. 5516, in the case of the District of Columbia). [T.D. 7577, 43 F.R. 59373, Dec. 20, 1978] 26 CFR s 301.6363-1, State agreements. ------------ Excerpt from pages 160534-160537 CODE OF FEDERAL REGULATIONS TITLE 20 -- EMPLOYEES' BENEFITS CHAPTER III -- SOCIAL SECURITY ADMINISTRATION PART 404 -- FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950- ) SUBPART A -- INTRODUCTION, GENERAL PROVISIONS AND DEFINITIONS Current through January 1, 1997; 61 F.R. 69366 s 404.2 General definitions and list of terms. (a) Terms relating to the Act and regulations. (1) "The Act" means the Social Security Act, as amended (42 U.S.C. Chapter 7). (2) "Section" means a section of the regulations in Part 404 of this chapter unless the context indicates otherwise. (b) Secretary; Commissioner; Appeals Council; Administrative Law Judge defined. (1) "Secretary" means the Secretary of Health and Human Services. (2) "Commissioner" means the Commissioner of Social Security. (3) "Appeals Council" means the Appeals Council of the Office of Hearings and Appeals in the Social Security Administration or such member or members thereof as may be Qualified State Tax References: Page 78 of 148 designated by the Chairman. (4) "Administrative Law Judge" means an Administrative Law Judge in the Office of Hearings and Appeals of the Social Security Administration. (c) Miscellaneous. (1) "Certify," when used in connection with the duty imposed on the Secretary by section 205(i) of the act, means that action taken by the Administration in the form of a written statement addressed to the Managing Trustee, setting forth the name and address of the person to whom payment of a benefit or lump sum, or any part thereof, is to be made, the amount to be paid, and the time at which payment should be made. (2) "Benefit" means an old-age insurance benefit, disability insurance benefit, wife's insurance benefit, husband's insurance benefit, child's insurance benefit, widow's insurance benefit, widower's insurance benefit, mother's insurance benefit, father's insurance benefit, parent's insurance benefit, or special payment at age 72 under title II of the Act. (Lump sums, which are death payments under title II of the Act, are excluded from the term "benefit" as defined in this part to permit greater clarity in the regulations.) (3) "Lump sum" means a lump-sum death payment under title II of the act or any person's share of such a payment. (4) "Attainment of age." An individual attains a given age on the first moment of the day preceding the anniversary of his birth corresponding to such age. (5) "State," unless otherwise indicated, includes (i) the District of Columbia, (ii) the Virgin Islands, (iii) the Commonwealth of Puerto Rico effective January 1, 1951, (iv) Guam and American Samoa, effective September 13, 1960, generally, and for purposes of sections 210(a) and 211 of the act effective after 1960 with respect to service performed after 1960, and effective for taxable years beginning after 1960 with respect to crediting net earnings from self-employment and self-employment income, and (v) the Territories of Alaska and Hawaii prior to January 3, 1959, and August 21, 1959, respectively when those territories acquired statehood. (6) "United States," when used in a geographical sense, includes, unless otherwise indicated, (i) the States, (ii) the Territories of Alaska and Hawaii prior to January 3, 1959, and August 21, 1959, respectively, when they acquired statehood, (iii) the District of Columbia, (iv) the Virgin Islands, (v) the Commonwealth of Puerto Rico effective January 1, 1951, and (vi) Guam and American Samoa, effective September 13, 1960, generally, and for purposes of sections 210(a) and 211 of the act, effective after 1960 with respect to service performed after 1960, and effective for taxable years beginning after 1960 with respect to crediting net earnings from self-employment and self-employment income. Qualified State Tax References: Page 79 of 148 (7) Masculine gender includes the feminine, unless otherwise indicated. (8) The terms defined in sections 209, 210, and 211 of the act shall have the meanings therein assigned to them. [26 F.R. 7055, Aug. 5, 1961; 26 F.R. 7760, Aug. 19, 1961, as amended at 28 F.R. 1037, Feb. 2, 1963; 28 F.R. 14492, Dec. 31, 1963; 29 F.R. 15509, Nov. 19, 1964; 41 F.R. 32886, Aug. 6, 1976; 51 F.R. 11718, April 7, 1986; 61 F.R. 41330, Aug. 8, 1996] [[SUBPART A -- INTRODUCTION, GENERAL PROVISIONS AND DEFINITIONS]] Authority: Secs. 203, 205(a), 216(j), and 702(a)(5) of the Social Security Act (42 U.S.C. 403, 405(a), 416(j), and 902(a)(5)). Source: 51 F.R. 11718, April 7, 1986; 52 F.R. 27540, July 22, 1987; 56 F.R. 60060, Nov. 27, 1991; 61 F.R. 5940, Feb. 15, 1996, unless otherwise noted. 20 CFR s 404.2, General definitions and list of terms. ------------ Excerpt from pages 103006-103007 CODE OF FEDERAL REGULATIONS TITLE 26 -- INTERNAL REVENUE CHAPTER I -- INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY SUBCHAPTER A -- INCOME TAX PART 1 -- INCOME TAXES NORMAL TAXES AND SURTAXES COMPUTATION OF TAXABLE INCOME ITEMIZED DEDUCTIONS FOR INDIVIDUALS AND CORPORATIONS Current through January 1, 1997; 61 F.R. 69366 s 1.164-3 Definitions and special rules. For purposes of section 164 and s 1.164-1 to s 1.164-8, inclusive -- (a) State or local taxes. A State or local tax includes only a tax imposed by a State, a possession of the United States, or a political subdivision of any of the foregoing, or by the District of Columbia. (b) Real property taxes. The term "real property taxes" Qualified State Tax References: Page 80 of 148 means taxes imposed on interests in real property and levied for the general public welfare, but it does not include taxes assessed against local benefits. See s 1.164-4. (c) Personal property taxes. The term "personal property tax" means an ad valorem tax which is imposed on an annual basis in respect of personal property. To qualify as a personal property tax, a tax must meet the following three tests: (1) The tax must be ad valorem -- that is, substantially in proportion to the value of the personal property. A tax which is based on criteria other than value does not qualify as ad valorem. For example, a motor vehicle tax based on weight, model year, and horsepower, or any of these characteristics is not an ad valorem tax. However, a tax which is partly based on value and partly based on other criteria may qualify in part. For example, in the case of a motor vehicle tax of 1 percent of value plus 40 cents per hundredweight, the part of the tax equal to 1 percent of value qualifies as an ad valorem tax and the balance does not qualify. (2) The tax must be imposed on an annual basis, even if collected more frequently or less frequently. (3) The tax must be imposed in respect of personal property. A tax may be considered to be imposed in respect of personal property even if in form it is imposed on the exercise of a privilege. Thus, for taxable years beginning after December 31, 1963, State and local taxes on the registration or licensing of highway motor vehicles are not deductible as personal property taxes unless and to the extent that the tests prescribed in this subparagraph are met. For example, an annual ad valorem tax qualifies as a personal property tax although it is denominated a registration fee imposed for the privilege of registering motor vehicles or of using them on the highways. (d) Foreign taxes. The term "foreign tax" includes only a tax imposed by the authority of a foreign country. A tax-imposed by a political subdivision of a foreign country is considered to be imposed by the authority of that foreign country. (e) Sales tax. (1) The term "sales tax" means a tax imposed upon persons engaged in selling tangible personal property, or upon the consumers of such property, including persons selling gasoline or other motor vehicle fuels at wholesale or retail, which is a stated sum per unit of property sold or which is measured by the gross sales price or the gross receipts from the sale. The term also includes a tax imposed upon persons engaged in furnishing services which is measured by the gross receipts for furnishing such services. (2) In general, the term "consumer" means the ultimate user or purchaser; it does not include a purchaser such as a retailer, who acquires the property for resale. (f) General sales tax. A "general sales tax" is a sales tax which is imposed at one rate in respect of the sale at retail of Qualified State Tax References: Page 81 of 148 a broad range of classes of items. No foreign sales tax is deductible under section 164(a) and paragraph (a)(4) of s 1.164- 1. To qualify as a general sales tax, a tax must meet the following two tests: (1) The tax must be a tax in respect of sales at retail. This may include a tax imposed on persons engaged in selling property at retail or furnishing services at retail, for example, if the tax is measured by gross sales price or by gross receipts from sales or services. Rentals qualify as sales at retail if so treated under applicable State sales tax laws. (2) The tax must be general -- that is, it must be imposed at one rate in respect of the retail sales of a broad range of classes of items. A sales tax is considered to be general although imposed on sales of various classes of items at more than one rate provided that one rate applies to the retail sales of a broad range of classes of items. The term "items" includes both commodities and services. (g) Special rules relating to general sales taxes. (1) A sales tax which is general is usually imposed at one rate in respect of the retail sales of all tangible personal property (with exceptions and additions). However, a sales tax which is selective -- that is, a tax which applies at one rate with respect to retail sales of specified classes of items also qualifies as general if the specified classes represent a broad range of classes of items. A selective sales tax which does not apply at one rate to the retail sales of a broad range of classes of items is not general. For example, a tax which applies only to sales of alcoholic beverages, tobacco, admissions, luxury items, and a few other items is not general. Similarly, a tax imposed solely on services is not general. However, a selective sales tax may be deemed to be part of the general sales tax and hence may be deductible, even if imposed by a separate Title, etc., of the State or local law, if imposed at the same rate as the general rate of tax (as defined in subparagraph (4) of this paragraph) which qualifies a tax in the taxing jurisdiction as a general sales tax. For example, if a State has a 5 percent general sales tax and a separate selective sales tax of 5 percent on transient accommodations, the tax on transient accommodations is deductible. (2) A tax is imposed at one rate only if it is imposed at that rate on generally the same base for all items subject to tax. For example, a sales tax imposed at a 3 percent rate on 100 percent of the sales price of some classes of items and at a 3 percent rate on 50 percent of the sales price of other classes of items would not be imposed at one rate with respect to all such classes. However, a tax is considered to be imposed at one rate although it allows dollar exemptions, if the exemptions are designed to exclude all sales under a certain dollar amount. For example, a tax may be imposed at one rate although it applies to all sales of tangible personal property but applies only to sales amounting to more than 10 cents. (3) The fact that a sales tax exempts food, clothing, Qualified State Tax References: Page 82 of 148 medical supplies, and motor vehicles, or any of them, shall not be taken into account in determining whether the tax applies to a broad range of classes of items. The fact that a sales tax applies to food, clothing, medical supplies, and motor vehicles, or any of them, at a rate which is lower than the general rate of tax (as defined in subparagraph (4) of this paragraph) is not taken into account in determining whether the tax is imposed at one rate on the retail sales of a broad range of classes of items. For purposes of this section, the term "food" means food for human consumption off the premises where sold, and the term "medical supplies" includes drugs, medicines, and medical devices. (4) Except in the case of a lower rate of tax applicable in respect of food, clothing, medical supplies, and motor vehicles, or any of them, no deduction is allowed for a general sales tax in respect of any item if the tax is imposed on such item at a rate other than the general rate of tax. The general rate of tax is the one rate which qualifies a tax in a taxing jurisdiction as a general sales tax because the tax is imposed at such one rate on a broad range of classes of items. There can be only one general rate of tax in any one taxing jurisdiction. However, a general sales tax imposed at a lower rate or rates on food, clothing, motor vehicles, and medical supplies, or any of them, may nonetheless be deductible with respect to such items. For example, a sales tax which is imposed at 1 percent with respect to food, imposed at 3 percent with respect to a broad range of classes of tangible personal property, and imposed at 4 percent with respect to transient accommodations would qualify as a general sales tax. Taxes paid at the 1 percent and the 3 percent rates are deductible, but tax paid at the 4 percent rate is not deductible. The fact that a sales tax provides for the adjustment of the general rate of tax to reflect the sales tax rate in another taxing jurisdiction shall not be taken into account in determining whether the tax is imposed at one rate on the retail sales of a broad range of classes of items. Moreover, a general sales tax imposed at a lower rate with respect to an item in order to reflect the tax rate in another jurisdiction is also deductible at such lower rate. For example, State E imposes a general sales tax whose general rate is 3 percent. The State E sales tax law provides that in areas bordering on States with general sales taxes, selective sales taxes, or special excise taxes, the rate applied in the adjoining State will be used if such rate is under 3 percent. State F imposes a 2 percent sales tax. The 2 percent sales tax paid by residents of State E in areas bordering on State F is deductible. (h) Compensating use taxes. A compensating use tax in respect of any item is treated as a general sales tax. The term "compensating use tax" means, in respect of any item, a tax which is imposed on the use, storage, or consumption of such item and which is complementary to a general sales tax which is deductible with respect to sales of similar items. (i) Special rules relating to compensating use taxes. (1) In general, a use tax on an item is complementary to a general sales tax on similar items if the use tax is imposed on an item Qualified State Tax References: Page 83 of 148 which was not subject to such general sales tax but which would have been subject to such general sales tax if the sale of the item had taken place within the jurisdiction imposing the use tax. For example, a tax imposed by State A on the use of a motor vehicle purchased in State B is complementary to the general sales tax of State A on similar items, if the latter tax applies to motor vehicles sold in State A. (2) Since a compensating use tax is treated as a general sales tax, it is subject to the rule of subparagraph (C) of section 164(b)(2) and paragraph (g)(4) of this section that no deduction is allowed for a general sales tax imposed in respect of an item at a rate other than the general rate of tax (except in the case of lower rates on the sale of food, clothing, medical supplies, and motor vehicles). The fact that a compensating use tax in respect of any item provides for an adjustment in the rate of the compensating use tax or the amount of such tax to be paid on account of a sales tax on such item imposed by another taxing jurisdiction is not taken into account in determining whether the compensating use tax is imposed in respect of the item at a rate other than the general rate of tax. For example, a compensating use tax imposed by State C on the use of an item purchased in State D is considered to be imposed at the general rate of tax even though the tax imposed by State C allows a credit for any sales tax paid on such item in State D, or the rate of such compensating use tax is adjusted to reflect the rate of sales tax imposed by State D. [T.D. 6500, 25 F.R. 11402, Nov. 26, 1960, as amended by T.D. 6780, 29 F.R. 18146, Dec. 22, 1964] 26 CFR s 1.164-3, Definitions and special rules. ------------ Excerpt from pages 143910-143913 CODE OF FEDERAL REGULATIONS TITLE 26 -- INTERNAL REVENUE CHAPTER I -- INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY SUBCHAPTER A -- INCOME TAX PART 1 -- INCOME TAXES NORMAL TAXES AND SURTAXES TAX BASED ON INCOME FROM SOURCES WITHIN OR WITHOUT THE UNITED STATES EARNED INCOME OF CITIZENS OR RESIDENTS OF UNITED STATES POSSESSIONS OF THE UNITED STATES Current through January 1, 1997; 61 F.R. 69366 s 1.932-1 Status of citizens of U.S. possessions. Qualified State Tax References: Page 84 of 148 (a) General rule -- (1) Definition and treatment. A citizen of a possession of the United States (except Puerto Rico and, for taxable years beginning after December 31, 1972, Guam), who is not otherwise a citizen or resident of the United States, including only the States and the District of Columbia, is treated for the purpose of the taxes imposed by subtitle A of the Code (relating to income taxes) as if he were a nonresident alien individual. However, for purposes of the tax imposed on self- employment income by chapter 2 of the Code, the term "possession of the United States" as used in section 932 and the preceding sentence does not include American Samoa, Guam, or the Virgin Islands. See section 1402(a)(9). See subpart A (section 871 and following), part II, subchapter N, chapter 1 of the Code, and the regulations thereunder, for rules relating to imposition of tax on nonresident alien individuals. For Federal income tax purposes, a citizen of a possession of the United States who is not otherwise a citizen of the United States is a citizen of a possession of the United States who has not become a citizen of the United States by naturalization in a State, Territory, or the District of Columbia. The fixed or determinable annual or periodical income from sources within the United States of a citizen of a possession of the United States who is treated as if he were a nonresident alien individual is subject to withholding. See section 1441. (2) Classification of citizens of United States possessions. For the purpose of this section citizens of the possessions of the United States who are not otherwise citizens of the United States are divided into two classes: (i) Citizens of possessions of the United States who at any time within the taxable year are not engaged in trade or business within the United States, and (ii) citizens of possessions of the United States who at any time within the taxable year are engaged in trade or business within the United States. The provisions of subpart A (section 871 and following) and the regulations thereunder, applicable to nonresident alien individuals not engaged in trade or business within the United States are applicable to the citizens of possessions falling within the first class, while the provisions of such sections applicable to nonresident alien individuals who at any time within the taxable year are engaged in trade or business within the United States are applicable to citizens of possessions falling within the second class. (b) Nonapplication to citizen of Puerto Rico or Guam. The provisions of section 932(a) and paragraph (a) of this section do not apply in the case of a citizen of Puerto Rico or, for taxable years beginning after December 31, 1972, a citizen of Guam. Thus, for example, any such citizen who is not a resident of the United States will not be treated by the United States as a nonresident alien individual for purposes of section 2(b)(3)(A) or (d), relating to definitions and special rules; section 4(d)(1), relating to taxpayers not eligible to use the optional tax tables; section 37(h), relating to denial of retirement income credit; section 116(d), relating to taxpayers ineligible for dividend exclusion; section 142(b)(1), relating to taxpayers ineligible for standard deduction; section 152(b)(3), relating Qualified State Tax References: Page 85 of 148 to definition of "dependent"; section 402(a)(4), relating to distributions by the United States to nonresident aliens; section 545(d), relating to certain foreign corporations; section 565(e), relating to certain consent dividends; section 861(a)(1), relating to interest from sources within the United States; sections 871 to 877, relating to nonresident alien individuals; section 1303(b), relating to individuals not eligible for income averaging; section 1371(a)(3), relating to definition of small business corporation; section 1402(b), relating to definition of "self-employment income"; section 1441, relating to withholding of tax on nonresident aliens; section 3401(a), relating to definition of wages; section 6013(a)(1), relating to inability to make a joint return; section 6015(b) and (i), relating to declaration of estimated income tax by nonresident alien individuals; section 6017, relating to self-employment tax returns; section 6042(b)(2), relating to returns regarding payments of dividends; section 6049(b)(2), relating to returns regarding payments of interest; section 6072(c), relating to time for filing returns of nonresident alien individuals; section 6091(b), relating to place for filing returns of nonresident aliens; and section 6096(a), relating to designation of tax payments to Presidential Election Campaign Fund. For other rules applicable to citizens of Puerto Rico, see ss 1.1-1(b) and 1.933-1. For other rules applicable to citizens of Guam, see ss 1.1-1(b) and 1.935-1 of this chapter (Income Tax Regulations) and s 301.7654-1 of this chapter (Regulations on Procedure and Administration). [T.D. 6500, 25 F.R. 11910, Nov. 26, 1960, as amended by T.D. 7332, 39 F.R. 44230, Dec. 23, 1974; T.D. 7385, 40 F.R. 50260, Oct. 29, 1975] 26 CFR s 1.932-1, Status of citizens of U.S. possessions. ------------ Excerpt from pages 152184-152185 CODE OF FEDERAL REGULATIONS TITLE 26 -- INTERNAL REVENUE CHAPTER I -- INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY SUBCHAPTER A -- INCOME TAX PART 1 -- INCOME TAXES PROCEDURE AND ADMINISTRATION INFORMATION AND RETURNS RETURNS AND RECORDS TAX RETURNS OR STATEMENTS Current through January 1, 1997; 61 F.R. 69366 s 1.6015(c)-1 Definition of estimated tax. Qualified State Tax References: Page 86 of 148 (a) In general. In the case of an individual, the term "estimated tax" means: (1) The amount which the individual estimates as the amount of the income tax imposed by chapter 1 (other than the tax imposed by section 56 or for taxable years ending before September 30, 1968, the tax surcharge imposed by section 51) for the taxable year (and including the amount which he estimates as the amount of any qualified State individual income taxes which are treated pursuant to section 6361(a) as if they were imposed by chapter 1 for the taxable year), plus (2) For taxable years beginning after December 31, 1966, the amount which the individual estimates as the amount of the self- employment tax imposed by chapter 2 for the taxable year, minus (3) The amount which the individual estimates as the sum of any credits against tax provided by part IV of subchapter A of chapter 1. These credits are those provided by section 31 (relating to tax withheld on wages), section 32 (relating to tax withheld at source on nonresident aliens and foreign corporations and on tax-free covenant bonds), section 33 (relating to foreign taxes), section 34 (relating to the credit for dividends received on or before December 31, 1964), section 35 (relating to partially tax-exempt interest), section 37 (relating to the elderly), section 38 (relating to the investment credit), section 39 (relating to certain uses of gasoline, special fuels, and lubricating oil), section 40 (relating to expenses of work incentive programs), section 41 (relating to contributions to candidates), section 42 (relating to general tax credit), section 43 (relating to earned income), section 44 (relating to purchase of new principal residence), section 44A (relating to expenses for household and dependent care services necessary for gainful employment), section 44B (relating to credit for employment of certain new employees), and section 45 (relating to overpayments of tax), minus, (4) In the case of an individual who is subject to one or more qualified State individual income taxes, the amount which he estimates as the sum of the credits allowed against such taxes pursuant to section 6362(b)(2)(B) or (C) or section 6362(c)(4) and paragraph (c) of s 301.6362-4 of this chapter (Regulations on Procedure and Administration) (relating to the credit for income taxes of other States or political subdivisions thereof) and paragraph (c)(2) of s 301.6361-1 (relating to the credit for tax withheld from wages on account of qualified State individual income taxes), and minus (5) For taxable years ending after February 29, 1980, the amount which the individual estimates will be the amount of such individual's overpayment of windfall profit tax imposed by section 4986 of the Code for the taxable year. For this purpose, the amount of such overpayment is the amount by which such individual's aggregate windfall profit tax liability for the taxable year as a producer of crude oil is reasonably expected to be exceeded by withholding of windfall profit tax for the taxable Qualified State Tax References: Page 87 of 148 year. (b) Example. A, a self-employed individual not subject to any qualified State individual income tax, estimates that his liabilities for income tax and self-employment tax for 1973 will be $1,600 and $400, respectively. A is required to declare and pay an estimated tax of $2,000 for that year. [T.D. 6500, 25 F.R. 12108, Nov. 26, 1960, as amended by T.D. 6777, 29 F.R. 17810, Dec. 16, 1964; T.D. 7427, 41 F.R. 34027, Aug. 12, 1976; T.D. 7577, 43 F.R. 59358, Dec. 20, 1978; T.D. 8016, 50 F.R. 11854, March 26, 1985] 26 CFR s 1.6015(c)-1, Definition of estimated tax. ------------ Excerpt from pages 155379-155380 CODE OF FEDERAL REGULATIONS TITLE 26 -- INTERNAL REVENUE CHAPTER I -- INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY SUBCHAPTER C -- EMPLOYMENT TAXES AND COLLECTION OF INCOME TAX AT SOURCE PART 31 -- EMPLOYMENT TAXES AND COLLECTION OF INCOME TAX AT SOURCE SUBPART G -- ADMINISTRATIVE PROVISIONS OF SPECIAL APPLICATION TO EMPLOYMENT TAXES (SELECTED PROVISIONS OF SUBTITLE F, INTERNAL REVENUE CODE OF 1954) Current through January 1, 1997; 61 F.R. 69366 s 31.6361-1 Collection and administration of qualified State individual income taxes. Except as otherwise provided in ss 301.6361-1 to 301.6385-2, inclusive, of this chapter (Regulations on Procedure and Administration), the provisions of this part under subtitle F or chapter 24 of the Internal Revenue Code of 1954 relating to the collection and administration of the taxes imposed by chapter 1 of such Code on the incomes of individuals (or relating to civil or criminal sanctions with respect to such collection and administration) shall apply to the collection and administration of qualified State individual income taxes (as defined in section 6362 of such Code and the regulations thereunder) as if such taxes were imposed by chapter 1 of chapter 24. [T.D. 7577, 43 F.R. 59360, Dec. 20, 1978] 26 CFR s 31.6361-1, Collection and administration of qualified State individual income taxes. ------------ Excerpt from page 158442 Qualified State Tax References: Page 88 of 148 CODE OF FEDERAL REGULATIONS TITLE 26 -- INTERNAL REVENUE CHAPTER I -- INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY SUBCHAPTER A -- INCOME TAX PART 1 -- INCOME TAXES PROCEDURE AND ADMINISTRATION COLLECTION GENERAL PROVISIONS Current through January 1, 1997; 61 F.R. 69366 s 1.6361-1 Collection and administration of qualified State individual income taxes. Except as otherwise provided in ss 301.6361-1 to 301.6365-2, inclusive, of this chapter (Regulations on Procedure and Administration), the provisions of this part under subtitle F of the Internal Revenue Code of 1954 relating to the collection and administration of the taxes imposed by chapter 1 of such Code on the incomes of individuals (or relating to civil or criminal sanctions with respect to such collection and administration) shall apply to the collection and administration of qualified State individual income taxes (as defined in section 6362 of such Code and the regulations thereunder) as if such taxes were imposed by chapter 1. [T.D. 7577, 43 F.R. 59358, Dec. 20, 1978] 26 CFR s 1.6361-1, Collection and administration of qualified State individual income taxes. ------------ Excerpt from page 155888 CODE OF FEDERAL REGULATIONS TITLE 26 -- INTERNAL REVENUE CHAPTER I -- INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY SUBCHAPTER B -- ESTATE AND GIFT TAXES PART 20 -- ESTATE TAX; ESTATES OF DECEDENTS DYING AFTER AUGUST 16, 1954 ACTUARIAL TABLES APPLICABLE BEFORE MAY 1, 1989 TAXABLE ESTATE Qualified State Tax References: Page 89 of 148 Current through January 1, 1997; 61 F.R. 69366 s 20.2056(b)-7 Election with respect to life estate for surviving spouse. (a) In general. Subject to section 2056(d), a marital deduction is allowed under section 2056(b)(7) with respect to estates of decedents dying after December 31, 1981, for qualified terminable interest property as defined in paragraph (b) of this section. All of the property for which a deduction is allowed under this paragraph (a) is treated as passing to the surviving spouse (for purposes of s 20.2056(a)-1), and no part of the property is treated as passing to any person other than the surviving spouse (for purposes of s 20.2056(b)-1). (b) Qualified terminable interest property -- (1) In general. Section 2056(b)(7)(B)(i) provides the definition of qualified terminable interest property. (i) Terminable interests described in section 2056(b)(1)(C) cannot qualify as qualified terminable interest property. Thus, if the decedent directs the executor to purchase a terminable interest with estate assets, the terminable interest acquired will not qualify as qualified terminable interest property. (ii) For purposes of section 2056(b)(7)(B)(i), the term property generally means the entire interest in property (within the meaning of s 20.2056(b)-5(d)) or a specific portion of the entire interest (within the meaning of s 20.2056(b)-5(c)). (2) Property for which an election may be made -- (i) In general. The election may relate to all or any part of property that meets the requirements of section 2056(b)(7)(B)(i), provided that any partial election must be made with respect to a fractional or percentage share of the property so that the elective portion reflects its proportionate share of the increase or decrease in value of the entire property for purposes of applying sections 2044 or 2519. The fraction or percentage may be defined by formula. (ii) Division of trusts -- (A) In general. A trust may be divided into separate trusts to reflect a partial election that has been made, or is to be made, if authorized under the governing instrument or otherwise permissible under local law. Any such division must be accomplished no later than the end of the period of estate administration. If, at the time of the filing of the estate tax return, the trust has not yet been divided, the intent to divide the trust must be unequivocally signified on the estate tax return. (B) Manner of dividing and funding trust. The division of the trust must be done on a fractional or percentage basis to reflect the partial election. However, the separate trusts do not have to be funded with a pro rata portion of each asset held by the undivided trust. Qualified State Tax References: Page 90 of 148 (C) Local law. A trust may be divided only if the fiduciary is required, either by applicable local law or by the express or implied provisions of the governing instrument, to divide the trust on the basis of the fair market value of the assets of the trust at the time of the division. (3) Persons permitted to make the election. The election referred to in section 2056(b)(7)(B)(i)(III) must be made by the executor that is appointed, qualified, and acting within the United States, within the meaning of section 2203, regardless of whether the property with respect to which the election is to be made is in the executor's possession. If there is no executor appointed, qualified, and acting within the United States, the election may be made by any person with respect to property in the actual or constructive possession of that person and may also be made by that person with respect to other property not in the actual or constructive possession of that person if the person in actual or constructive possession of such other property does not make the election. For example, in the absence of an appointed executor, the trustee of an inter vivos trust (that is included in the gross estate of the decedent) can make the election. (4) Manner and time of making the election -- (i) In general. The election referred to in section 2056(b)(7)(B)(i)(III) and (v) is made on the return of tax imposed by section 2001 (or section 2101). For purposes of this paragraph, the term return of tax imposed by section 2001 means the last estate tax return filed by the executor on or before the due date of the return, including extensions or, if a timely return is not filed, the first estate tax return filed by the executor after the due date. (ii) Election irrevocable. The election, once made, is irrevocable, provided that an election may be revoked or modified on a subsequent return filed on or before the due date of the return, including extensions actually granted. If an executor appointed under local law has made an election on the return of tax imposed by section 2001 (or section 2101) with respect to one or more properties, no subsequent election may be made with respect to other properties included in the gross estate after the return of tax imposed by section 2001 is filed. An election under section 2056(b)(7)(B)(v) is separate from any elections made under section 2056A(a)(3). (c) Protective elections -- (1) In general. A protective election may be made to treat property as qualified terminable interest property only if, at the time the federal estate tax return is filed, the executor of the decedent's estate reasonably believes that there is a bona fide issue that concerns whether an asset is includible in the decedent's gross estate, or the amount or nature of the property the surviving spouse is entitled to receive, i.e., whether property that is includible is eligible for the qualified terminable interest property election. The protective election must identify either the specific asset, group of assets, or trust to which the election applies and the specific basis for the protective election. Qualified State Tax References: Page 91 of 148 (2) Protective election irrevocable. The protective election, once made on the return of tax imposed by section 2001, cannot be revoked. For example, if a protective election is made on the basis that a bona fide question exists regarding the inclusion of a trust corpus in the gross estate and it is later determined that the trust corpus is so includible, the protective election becomes effective with respect to the trust corpus and cannot thereafter be revoked. (d) Qualifying income interest for life -- (1) In general. Section 2056(b)(7)(B)(ii) provides the definition of qualifying income interest for life. For purposes of section 2056(b)(7)(B)(ii)(II), the surviving spouse is included within the prohibited class of powerholders referred to therein. (2) Entitled for life to all income. The principles of s 20.2056(b)-5(f), relating to whether the spouse is entitled for life to all of the income from the entire interest, or a specific portion of the entire interest, apply in determining whether the surviving spouse is entitled for life to all of the income from the property regardless of whether the interest passing to the spouse is in trust. (3) Contingent income interests. An income interest granted for a term of years, or a life estate subject to termination upon the occurrence of a specified event (e.g., remarriage), is not a qualifying income interest for life. In addition, an income interest (or life estate) that is contingent upon the executor's election under section 2056(b)(7)(B)(v) is not a qualifying income interest for life, regardless of whether the election is actually made. (4) Income between last distribution date and date of spouse's death. An income interest does not fail to constitute a qualifying income interest for life solely because income between the last distribution date and the date of the surviving spouse's death is not required to be distributed to the surviving spouse or to the estate of the surviving spouse. See s 20.2044-1 relating to the inclusion of such undistributed income in the gross estate of the surviving spouse. (5) Pooled income funds. An income interest in a pooled income fund described in section 642(c)(5) constitutes a qualifying income interest for life for purposes of section 2056(b)(7)(B)(ii). (6) Power to distribute principal to spouse. An income interest in a trust will not fail to constitute a qualifying income interest for life solely because the trustee has a power to distribute principal to or for the benefit of the surviving spouse. The fact that property distributed to a surviving spouse may be transferred by the spouse to another person does not result in a failure to satisfy the requirement of section 2056(b)(7)(B)(ii)(II). However, if the surviving spouse is legally bound to transfer the distributed property to another person without full and adequate consideration in money or money's worth, the requirement of section 2056(b)(7)(B)(ii)(II) Qualified State Tax References: Page 92 of 148 is not satisfied. (e) Annuities payable from trusts in the case of estates of decedents dying on or before October 24, 1992, and certain decedents dying after October 24, 1992, with wills or revocable trusts executed on or prior to that date -- (1) In general. In the case of estates of decedents within the purview of the effective date and transitional rules contained in s 20.2056(b)- 7(e)(5), a surviving spouse's lifetime annuity interest payable from a trust or other group of assets passing from the decedent is treated as a qualifying income interest for life for purposes of section 2056(b)(7)(B)(ii). (2) Deductible interest. The deductible interest, for purposes of s 20.2056(a)-2(b), is the specific portion of the property that, assuming the applicable interest rate for valuing annuities, would produce income equal to the minimum amount payable annually to the surviving spouse. If, based on the applicable interest rate, the entire property from which the annuity may be satisfied is insufficient to produce income equal to the minimum annual payment, the value of the deductible interest is the entire value of the property. The value of the deductible interest may not exceed the value of the property from which the annuity is payable. If the annual payment may increase, the increased amount is not taken into account in valuing the deductible interest. (3) Distributions permissible only to surviving spouse. An annuity interest is not treated as a qualifying income interest for life for purposes of section 2056(b)(7)(B)(ii) if any person other than the surviving spouse may receive, during the surviving spouse's lifetime, any distribution of the property or its income (including any distribution under an annuity contract) from which the annuity is payable. (4) Applicable interest rate. To determine the applicable interest rate for valuing annuities, see sections 2031 and 7520 and the regulations under those sections. (5) Effective dates. (i) The rules contained in s 20.2056(b)-7(e) apply with respect to estates of decedents dying on or before October 24, 1992. (ii) The rules contained in s 20.2056(b)-7(e) apply in the case of decedents dying after October 24, 1992, if property passes to the spouse pursuant to a will or revocable trust executed on or before October 24, 1992, and either -- (A) On that date, the decedent was under a mental disability to change the disposition of his property and did not regain his competence to dispose of such property before the date of death; or (B) The decedent dies prior to October 24, 1995. (iii) Notwithstanding the foregoing, the rules contained in s 20.2056(b)-7(e) do not apply if the will or revocable trust is Qualified State Tax References: Page 93 of 148 amended after October 24, 1992, in any respect that increases the amount of the transfer qualifying for the marital deduction or alters the terms by which the interest so passes to the surviving spouse. (f) Joint and survivor annuities. [Reserved] (g) Application of local law. The provisions of local law are taken into account in determining whether the conditions of section 2056(b)(7)(B)(ii)(I) are satisfied. For example, silence of a trust instrument as to the frequency of payment is not regarded as a failure to satisfy the requirement that the income must be payable to the surviving spouse annually or more frequently unless applicable local law permits payments less frequently. (h) Examples. The following examples illustrate the application of paragraphs (a) through (g) of this section. In each example, it is assumed that the decedent, D, was survived by S, D's spouse and that, unless stated otherwise, S is not the trustee of any trust established for S's benefit. Example 1. Life estate in residence. D owned a personal residence valued at $250,000 for estate tax purposes. Under D's will, the exclusive and unrestricted right to use the residence (including the right to continue to occupy the property as a personal residence or to rent the property and receive the income) passes to S for life. At S's death, the property passes to D's children. Under applicable local law, S must consent to any sale of the property. If the executor elects to treat all of the personal residence as qualified terminable interest property, the deductible interest is $250,000, the value of the residence for estate tax purposes. Example 2. Power to make property productive. D's will established a trust funded with property valued for estate tax purposes at $500,000. The assets include both income producing assets and non-productive assets. S was given the power, exercisable annually, to require distribution of all of the trust income to herself. No trust property may be distributed during S's lifetime to any person other than S. Applicable local law permits S to require that the trustee either make the trust property productive or sell the property and reinvest in productive property within a reasonable time after D's death. If the executor elects to treat all of the trust as qualified terminable interest property, the deductible interest is $500,000. If the executor elects to treat only 20 percent of the trust as qualified terminable interest property, the deductible interest is $100,000, i.e., 20 percent of $500,000. Example 3. Power of distribution over fraction of trust income. The facts are the same as in Example 2 except that S is given the right exercisable annually for S's lifetime to require distribution to herself of only 50 percent of the trust income for life. The remaining trust income is to be accumulated or distributed among S and the decedent's children in the trustee's discretion. The maximum amount that D's executor may elect to Qualified State Tax References: Page 94 of 148 treat as qualified terminable interest property is $250,000; i.e., the estate tax value of the trust ($500,000) multiplied by the percentage of the trust in which S has a qualifying income interest for life (50 percent). If D's executor elects to treat only 20 percent of the portion of the trust in which S has a qualifying income interest as qualified terminable interest property, the deductible interest is $50,000, i.e., 20 percent of $250,000. Example 4. Power to distribute trust corpus to other beneficiaries. D's will established a trust providing that S is entitled to receive at least annually all the trust income. The trustee is given the power to use annually during S's lifetime $5,000 from the trust for the maintenance and support of S's minor child, C. Any such distribution does not necessarily relieve S of S's obligation to support and maintain C. S does not have a qualifying income interest for life in any portion of the trust because the bequest fails to satisfy the condition that no person have a power, other than a power the exercise of which takes effect only at or after S's death, to appoint any part of the property to any person other than S. The trust would also be nondeductible under section 2056(b)(7) if S, rather than the trustee, held the power to appoint a portion of the principal to C. However, in the latter case, if S made a qualified disclaimer (within the meaning of section 2518) of the power to appoint to C, the trust could qualify for the marital deduction pursuant to section 2056(b)(7), assuming that the power is personal to S and S's disclaimer terminates the power. Similarly, in either case, if C made a qualified disclaimer of C's right to receive distributions from the trust, the trust would qualify under section 2056(b)(7), assuming that C's disclaimer effectively negates the trustee's power under local law. Example 5. Spouse's income interest terminable on remarriage. D's will established a trust providing that all of the trust income is payable at least annually to S for S's lifetime, provided that, if S remarries, S's interest in the trust will pass to X. The trust is not deductible under section 2056(b)(7). S's income interest is not a qualifying income interest for life because it is not for life but, rather, is terminable upon S's remarriage. Example 6. Spouse's income interest contingent on executor's election. D's will established a trust providing that S is entitled to receive the income from that portion of the trust that the executor elects to treat as qualified terminable interest property. S does not have a qualifying income interest for life in any portion of the trust because the income interest is contingent upon the executor's election. Accordingly, the executor cannot elect qualified terminable interest treatment for any portion of the trust. If the decedent's will gives the surviving spouse a qualifying income interest for life in a specific portion of the trust (such as the minimum portion of the trust that is necessary to reduce the Federal estate tax to zero) and the interest is not contingent on the executor's election, the executor can elect qualified terminable interest treatment for the specified portion of the trust. Qualified State Tax References: Page 95 of 148 Example 7. Formula partial election. D's will established a trust funded with the residue of D's estate. Trust income is to be paid annually to S for life, and the principal is to be distributed to D's children upon S's death. S has the power to require that all the trust property be made productive. There is no power to distribute trust property during S's lifetime to any person other than S. D's executor elects to deduct a fractional share of the residuary estate under section 2056(b)(7). The election specifies that the numerator of the fraction is the amount of deduction necessary to reduce the Federal estate tax to zero (taking into account final estate tax values) and the denominator of the fraction is the final estate tax value of the residuary estate (taking into account any specific bequests or liabilities of the estate paid out of the residuary estate). The formula election is of a fractional share. The value of the share qualifies for the marital deduction even though the executor's determinations to claim administration expenses as estate or income tax deductions and the final estate tax values will affect the size of the fractional share. Example 8. Formula partial election. The facts are the same as in Example 7 except that, rather than defining a fraction, the executor's formula states: "I elect to treat as qualified terminable interest property that portion of the residuary trust, up to 100 percent, necessary to reduce the Federal estate tax to zero, after taking into account the available unified credit, final estate tax values and any liabilities and specific bequests paid from the residuary estate." The formula election is of a fractional share. The share is equivalent to the fractional share determined in Example 7. Example 9. Severance of QTIP trust. D's will established a trust funded with the residue of D's estate. Trust income is to be paid annually to S for life, and the principal is to be distributed to D's children upon S's death. S has the power to require that all of the trust property be made productive. There is no power to distribute trust property during S's lifetime to any person other than S. D's will authorizes the executor to make the election under section 2056(b)(7) only with respect to the minimum amount of property necessary to reduce estate taxes on D's estate to zero, authorizes the executor to divide the residuary estate into two separate trusts to reflect the election, and authorizes the executor to charge any payment of principal to S to the qualified terminable interest trust. S is the sole beneficiary of both trusts during S's lifetime. The authorizations in the will do not adversely affect the allowance of the marital deduction. Only the property remaining in the marital deduction trust, after payment of principal to S, is subject to inclusion in S's gross estate under section 2044 or subject to gift tax under section 2519. Example 10. Payments to spouse from individual retirement account. S is the life beneficiary of sixteen remaining annual installments payable from D's individual retirement account. The terms of the account provide for the payment of the account balance in nineteen annual installments that commenced when D reached age 70 1/2. Each installment is equal to all the income Qualified State Tax References: Page 96 of 148 earned on the remaining principal in the account plus a share of the remaining principal equal to 1/19 in the first year, 1/18 in the second year, 1/17 in the third year, etc. Under the terms of the account, S has no right to withdraw any other amounts from the account. Any payments remaining after S's death pass to D's children. S's interest in the account qualifies as a qualifying income interest for life under section 2056(b)(7)(B)(ii), without regard to the provisions of section 2056(b)(7)(C). Example 11. Spouse's interest in trust in the form of an annuity. D died prior to October 24, 1992. D's will established a trust funded with income producing property valued at $500,000 for estate tax purposes. The trustee is required by the trust instrument to pay $20,000 a year to S for life. Trust income in excess of the annuity amount is to be accumulated in the trust and may not be distributed during S's lifetime. S's lifetime annuity interest is treated as a qualifying income interest for life. If the executor elects to treat the entire portion of the trust in which S has a qualifying income interest as qualified terminable interest property, the value of the deductible interest is (assuming that 10 percent is the applicable interest rate under section 7520 for valuing annuities on the appropriate valuation date) $200,000, because that amount would yield an income to S of $20,000 a year. Example 12. Value of spouse's annuity exceeds value of trust corpus. The facts are the same as in Example 11 except that the trustee is required to pay S $70,000 a year for life. If the executor elects to treat the entire portion of the trust in which S has a qualifying income interest as qualified terminable interest property, the value of the deductible interest is $500,000, which is the lesser of the entire value of the property ($500,000), or the amount of property that (assuming a 10 percent interest rate) would yield an income to S of $70,000 a year ($700,000). Example 13. Pooled income fund. D's will provides for a bequest of $200,000 to a pooled income fund described in section 642(c)(5), designating S as the income beneficiary for life. If D's executor elects to treat the entire $200,000 as qualified terminable interest property, the deductible interest is $200,000. Example 14. Funding severed QTIP trusts. D's will established a trust satisfying the requirements of section 2056(b)(7). Pursuant to the authority in D's will and s 20.2056(b)-7(b)(2)(ii), D's executor indicates on the Federal estate tax return that an election under section 2056(b)(7) is being made with respect to 50 percent of the trust, and that the trust will subsequently be divided to reflect the partial election on the basis of the fair market value of the property at the time of the division. D's executor funds the trust at the end of the period of estate administration. At that time, the property available to fund the trusts consists of 100 shares of X Corporation stock with a current value of $400,000 and 200 shares of Y Corporation stock with a current value of $400,000. D may fund each trust with the stock of either or both corporations, in any combination, Qualified State Tax References: Page 97 of 148 provided that the aggregate value of the stock allocated to each trust is $400,000. [T.D. 8522, 59 F.R. 9651, March 1, 1994] 26 CFR s 20.2056(b)-7, Election with respect to life estate for surviving spouse. ------------ Excerpt from pages 157089-157096 CODE OF FEDERAL REGULATIONS TITLE 26 -- INTERNAL REVENUE CHAPTER I -- INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY SUBCHAPTER B -- ESTATE AND GIFT TAXES PART 20 -- ESTATE TAX; ESTATES OF DECEDENTS DYING AFTER AUGUST 16, 1954 PROCEDURE AND ADMINISTRATION Current through January 1, 1997; 61 F.R. 69366 s 20.6324B-1 Special lien for additional estate tax attributable to farm, etc., valuation. (a) General rule. In the case of an estate of a decedent dying after December 31, 1976, which includes any interest in qualified real property, if the executor elects to value part or all of such property pursuant to section 2032A, a lien arises in favor of the United States on the property to which the election applies. The lien is in the amount equal to the adjusted tax difference attributable to such interest (as defined by section 2032A(c)(2)(B)). The term "qualified real property" means qualified real property as defined in section 2032A(b), qualified replacement property within the meaning of section 2032A(h)(3)(B), and qualified exchange property within the meaning of section 2032A(i)(3). The rules set forth in the regulations under section 2032A shall apply in determining whether this section is applicable to otherwise qualified real property held by a partnership, corporation or trust. (b) Period of lien. The lien shall arise at the time the executor files an election under section 2032A. It shall remain in effect until one of the following occurs: (1) The liability for the additional estate tax under section 2032A(c) with respect to such interest has been satisfied; or (2) Such liability has become unenforceable by reason of lapse of time; or (3) The district director is satisfied that no further Qualified State Tax References: Page 98 of 148 liability for additional estate tax with respect to such interest may arise under section 2032A(c), i.e., the required time period has elapsed since the decedent's death without the occurrence of an event described in section 2032A(c)(1), or the qualified heir (as defined in section 2032A(e)(1)) had died. For procedures regarding the release or subordination of liens or discharge of property from liens, see s 301.6325-1 of this chapter (Regulations on Procedure and Administration). (c) Substitution of security for lien. The district director may, upon written application of the qualified heir (as defined in section 2032A(e)(1)) acquiring any interest in qualified real property to which a lien imposed by section 6324B attaches, issue a certificate of discharge of any or all property subject to such lien, after receiving a bond or other security in an amount or value determined by the district director as sufficient security for the maximum potential liability for additional estate tax with respect to such interest. Any bond shall be in the form and with the security prescribed in s 301.7101-1 of this chapter. (d) Special rules. The rules set forth in section 6324A(d)(1), (3), and (4), and the regulations thereunder, shall apply with respect to a lien imposed by section 6324B as if it were a lien imposed by section 6324A. [T.D. 7847, 47 F.R. 50856, Nov. 10, 1982] 26 CFR s 20.6324B-1, Special lien for additional estate tax attributable to farm, etc., valuation. ------------ Excerpt from pages 157272-157273 CODE OF FEDERAL REGULATIONS TITLE 26 -- INTERNAL REVENUE CHAPTER I -- INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY SUBCHAPTER F -- PROCEDURE AND ADMINISTRATION PART 301 -- PROCEDURE AND ADMINISTRATION COLLECTION LIEN FOR TAXES Current through January 1, 1997; 61 F.R. 69366 s 301.6321-1 Lien for taxes. If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, additional amount, addition to tax, or assessable penalty, together with any costs that may accrue in addition thereto) Qualified State Tax References: Page 99 of 148 shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, tangible or intangible, belonging to such person. For purposes of section 6321 and this section, the term "any tax" shall include a State individual income tax which is a "qualified tax", as defined in paragraph (b) of s 301.6361-4. The lien attaches to all property and rights to property belonging to such person at any time during the period of the lien, including any property or rights to property acquired by such person after the lien arises. Solely for purposes of sections 6321 and 6331, any interest in restricted land held in trust by the United States for an individual noncompetent Indian (and not for a tribe) shall not be deemed to be property, or a right to property, belonging to such Indian. For the method of allocating amounts collected pursuant to a lien between the Federal Government and a State or States imposing a qualified tax with respect to which the lien attached, see paragraph (f) of s 301.6361-1. For the special lien for estate and gift taxes, see section 6324 and s 301.6324-1. [32 F.R. 15241, Nov. 3, 1967, as amended by T.D. 7139, 36 F.R. 15041, Aug. 12, 1971; T.D. 7577, 43 F.R. 59361, Dec. 20, 1978] 26 CFR s 301.6321-1, Lien for taxes. ------------ Excerpt from page 160371 CODE OF FEDERAL REGULATIONS TITLE 26 -- INTERNAL REVENUE CHAPTER I -- INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY SUBCHAPTER F -- PROCEDURE AND ADMINISTRATION PART 301 -- PROCEDURE AND ADMINISTRATION COLLECTION SEIZURE OF PROPERTY FOR COLLECTION OF TAXES Current through January 1, 1997; 61 F.R. 69366 s 301.6361-1 Collection and administration of qualified taxes. (a) In general. In the case of any State which has in effect a State agreement (as defined in paragraph (a) of s 301.6361-4), the Commissioner of Internal Revenue shall collect and administer each qualified tax (as defined in paragraph (b) of s 301.6361-4) of such State. No fee or other charge shall be imposed upon any State for the collection or administration of any qualified tax of such State or any other State. In any such case of collection and administration of qualified taxes, the provisions of subtitle F (relating to procedure and administration), subtitle G (relating to the Joint Committee on Taxation), and chapter 24 (relating to the collection of income tax at source on wages), and the provisions of regulations Qualified State Tax References: Page 100 of 148 thereunder, insofar as such provisions relate to the collection and administration of the taxes imposed on the income of individuals by chapter 1 (and the civil and criminal sanctions provided by subtitle F, or by title 18 of the United States Code (relating to crimes and criminal procedure), with respect to such collection and administration) shall apply to the collection and administration of qualified taxes as if such taxes were imposed by chapter 1, except to the extent that the application of such provisions (and sanctions) are modified by regulations issued under subchapter E (as defined in paragraph (d) of s 301.6361-4). Any extension of time which is granted for the making of a payment, or for the filing of any return, which relates to any Federal tax imposed by subtitle A (or by subtitle C with respect to filing a return) shall constitute automatically an extension of the same amount of time for the making of the corresponding payment or for the filing of the corresponding return relating to any qualified tax. (b) Returns of qualified taxes. Every individual, estate, or trust which has liability for one or more qualified taxes for a taxable year -- (1) Shall file a Federal income tax return at the time prescribed pursuant to section 6072(a) (whether or not such return is required by section 6012), and shall file therewith on the prescribed form a return under penalties of perjury for each tax which is -- (i) A qualified resident tax imposed by a State of which the taxpayer was a resident, as defined in s 301.6362-6, for any part of the taxable year; (ii) A qualified nonresident tax imposed by a State within which was located the source or sources from which the taxpayer derived, while not a resident of such State and while not exempt from liability for the tax by reason of a reciprocal agreement between such State and the State of which he is a resident, 25 percent or more of his aggregate wage and other business income, as defined in paragraph (c) of s 301.6362-5, for the taxable year; or (iii) A qualified resident or nonresident tax with respect to which any amount was currently collected from the taxpayer's income (including collection by withholding on wages or by payment of estimated income tax), as provided in paragraph (f) of s 301.6362-6, for any part of the taxable year; and (2) Shall declare (in addition to the declaration required with respect to the return of the Federal income tax and in the place and manner prescribed by form or instructions thereto) under penalties of perjury that, to the best of the knowledge and belief of the taxpayer (or, in the case of an estate or trust, of the fiduciary who executes the Federal income tax return), he has no liability for any qualified tax for the taxable year other than any such liabilities returned with the Federal income tax return (pursuant to subparagraph (1) of this paragraph (b)). Such declaration shall constitute a return indicating no Qualified State Tax References: Page 101 of 148 liability with respect to each qualified tax other than any such tax for which liability is so returned. A Federal income tax return form which is filed but which does not contain such declaration shall constitute a Federal income tax return only if the taxpayer in fact has no liability for any qualified State tax for the taxable year. (c) Credits -- (1) Credit for tax of another State or political subdivision -- (i) In general. A credit allowable under a qualified tax law against the tax imposed by such law for a taxpayer's tax liability to another State or a political subdivision of another State shall be allowed if the requirements of subdivision (ii) of this subparagraph are met, and if the credit meets the requirements of paragraph (c) of s 301.6362-4. Such credit shall be allowed without regard to whether the tax imposed by the other State or subdivision thereof is a qualified tax, and without regard to whether such tax has been paid. (ii) Substantiation of tax liability for which a credit is allowed. If the liability which gives rise to a credit of the type described in subdivision (i) of this subparagraph is with respect to a qualified tax, then the fact of such liability shall be substantiated by filing the return on which such liability is reported. If such liability is not with respect to a qualified tax, then the Commissioner may require a taxpayer who claims entitlement to such a credit to complete a form to be submitted with his return of the qualified tax against which the credit is claimed. On such form the taxpayer shall identify each of the other States (the liabilities to which were not substantiated as provided in the first sentence of this subdivision) or political subdivisions to which the taxpayer reported a liability for a tax giving rise to the credit, furnish the name or description of each such tax, state the amount of the liability so reported with respect to each such tax and the beginning and ending dates of the taxable period for which such liability was reported, and provide such other information as is requested in the form or in the instructions thereto. In addition, the taxpayer shall agree on such form to notify the Commissioner in the event that the amount of any tax liability (or portion thereof) which is claimed as giving rise to a credit of the type described in subdivision (i) of this subparagraph is changed or adjusted, whether as a result of an amended return filed by the taxpayer, a determination by the jurisdiction imposing the tax, or in any other manner. (2) Credit or withheld qualified tax. An individual from whose wages an amount is withheld on account of a qualified tax shall receive a credit for such amount against his aggregate liability for all such qualified taxes and the Federal income tax for the taxable year, whether or not such tax has been paid over to the Federal Government by the employer. The credit shall operate in the manner provided by section 31(a) of the Code and the regulations thereunder with respect to Federal income tax withholding. (d) Collection of qualified taxes at source on wages -- (1) In general. Except as otherwise provided in subparagraph (2) of Qualified State Tax References: Page 102 of 148 this paragraph, every employer making payment of wages to an employee described in such subparagraph shall deduct and withhold upon such wages the amount prescribed with respect to the qualified tax designated in such subparagraph. The amounts prescribed for withholding with respect to each such qualified tax shall be published in Circular E (Employer's Tax Guide) or other appropriate Internal Revenue Service publications. See paragraph (f)(1) of s 301.6362-7 with respect to civil and criminal penalties to which an employer shall be subject with respect to his responsibilities relating to qualified taxes. (2) Specific withholding requirements. An employer shall deduct and withhold upon an employee's wages the amount prescribed with respect to a qualified tax with respect to which such employee is subject to the current collection provisions pursuant to paragraph (f) of s 301.6362-6, unless: (i) In the case of a qualified resident tax, the employee's services giving rise to the wages are performed in another State, and such other State or a political subdivision thereof imposes a nonresident tax on such employee with respect to which the withholding amount exceeds the prescribed withholding amount with respect to such qualified resident tax, and the State imposing such qualified resident tax grants a credit against it for such nonresident tax. (ii) In the case of a qualified nonresident tax, either: (A) Residents of the State in which the employee resides are exempt from liability for the qualified nonresident tax imposed by the State from sources within which his wage income is derived, by reason of an interstate compact or agreement to which the two States are parties, or (B) The State in which the employee resides imposes a qualified resident tax on such employee with respect to which the prescribed withholding amounts exceed the prescribed withholding amounts with respect to the qualified nonresident tax imposed by the State from sources within which his wage income is derived, and the State in which he resides grants a credit against its qualified resident tax for such qualified nonresident tax. If the nonresident tax described in subdivision (i) of this subparagraph is a qualified nonresident tax imposed by a State, then the reference in such subdivision to the State in which the services are performed shall be construed as a reference to the State from sources within which the wage income is derived, within the meaning of paragraph (d)(1) of s 301.6362-5. (3) Forms, procedures, and returns relating to withholding with respect to qualified taxes -- (i) Forms W-4 and W-4P. Forms W-4 (Employee's Withholding Allowance Certificate) and W-4P (Annuitant's Request for Income Tax Withholding), shall include information as to the State in which the employee resides, and shall be used for purposes of withholding with respect to both Federal and qualified taxes. An employee shall show on his Form W-4 the State in which he resides for purposes of this paragraph, Qualified State Tax References: Page 103 of 148 and shall file a new Form W-4 within 10 days after he changes his State of residence. An employee who fails to meet either of the requirements set forth in the preceding sentence, with the intent to evade the withholding tax imposed with respect to a qualified tax, shall be subject to the penalty provided in section 7205 of the Code. An employer shall be responsible for determining the State within which are located the sources from which the employee's wage income is derived for purposes of this paragraph; and, if the employee does not file a Form W-4, the employer shall assume for such purposes that the employee resides in that State. When an employer and an employee enter into a voluntary withholding agreement pursuant to s 31.3402(p)-1, the employer shall withhold the amount prescribed with respect to the qualified resident tax imposed by the State in which the employee resides, as indicated on Form W-4. Similarly, if an annuitant requests withholding with respect to his annuity payments pursuant to section 3402(o)(1)(B) of the Code, the payer shall withhold the whole dollar amount specified by the annuitant with respect to a qualified resident tax, provided that the combined withholding with respect to Federal and qualified taxes on each annuity payment shall be a whole dollar amount not less than $5, and that the net amount of any annuity payment received by the payee shall not be reduced to less than $10. (ii) Forms W-2 and W-2P. Forms W-2 (Wage and Tax Statement) and W-2P (the corresponding form for annuities) shall show: (A) The total amount withheld with respect to the Federal income tax; (B) The total amount withheld with respect to qualified taxes; (C) The name of each State imposing a qualified tax in which the employee (or annuitant) resided during the taxable year, as shown on Form W-4 (or W-4P); (D) The name of each State imposing a qualified nonresident tax within which were located sources from which the employee's wage income was derived during a period of the taxable year in which he was not shown as a resident of such State on Form W-4, and the amount of the employee's wage income so derived; and (E) The name of each State or locality that imposes an income tax which is not a qualified tax and with respect to which the employer withheld on the employee's wage income for the taxable year, and the amount of wage income with respect to which the employer so withheld. (iii) Requirements relating to deposit and payment of withheld tax. Rules relating to the deposit and remittance of withheld Federal income and FICA taxes, including those prescribed in section 6302 of the Code and the regulations thereunder, shall apply also to amounts withheld with respect to qualified taxes. Thus, an employer's liability with respect to the deposit and payment of withheld taxes shall be for the combined amount of withholding with respect to Federal and Qualified State Tax References: Page 104 of 148 qualified taxes. The Federal Tax Deposit form shall separately indicate: (A) The combined total amount of Federal income, FICA, and qualified taxes withheld; (B) The combined total amount of qualified taxes withheld; and (C) The total amount of qualified taxes withheld with respect to each electing State. Data indicating the total amount of tax deposits processed by the Internal Revenue Service with respect to the qualified taxes of an electing State will be available to that State upon request on as frequent as a weekly basis. These data will be available no later than 10 working days after the end of the calendar week in which the deposits were processed by the Service. (iv) Employment tax returns. Forms 941 (Employer's Quarterly Federal Tax Return), 941-E (Quarterly Return of Withheld Income Tax), 941-M (Employer's Monthly Federal Tax Return), 942 (Employer's Quarterly Tax Return for Household Employees), and 943 (Employer's Annual Tax Return for Agricultural Employees), shall indicate the total amount withheld with respect to each qualified tax, as directed by such forms or their instructions. (e) Criminal penalties. A criminal offense committed with respect to a qualified tax shall be treated as a separate offense from a similar offense committed with respect to the Federal tax. Thus, for example, if a taxpayer willfully attempts to evade both the Federal tax and a qualified tax by failing to report a portion of his income, he shall be considered as having committed two criminal offenses, each subject to a separate penalty under section 7201. See also s 301.6362-7(f) with respect to criminal penalties. (f) Allocation of amounts collected with respect to tax and criminal fines -- (1) In general. The aggregate amount that has been collected from a taxpayer (including amounts collected by withholding) in respect of liability for both one or more qualified taxes and the Federal income tax for a taxable year shall be allocated among the Federal Government and the States imposing qualified taxes for which the taxpayer is liable in the proportion which the taxpayer's liability for each such tax bears to his aggregate liability for such year to all of such taxing jurisdictions with respect to such taxes. A reallocation shall be made either when an amount is collected from the taxpayer or his employer or is credited or refunded to the taxpayer, subsequent to the making of the initial allocation, or when a determination is made by the Commissioner that an error was made with respect to a previous allocation. However, any such allocation or reallocation shall not affect the amount of a taxpayer's or employer's liability to either jurisdiction, or the amount of the assessment and collection which may be made with respect to a taxpayer or employer. Accordingly, such allocations Qualified State Tax References: Page 105 of 148 and reallocations shall not be taken into consideration for purposes of the application of statutes of limitation or provisions relating to interest, additions to tax, penalties, and criminal sanctions. See example (4) in subparagraph (4) of this paragraph (e). In addition, any such allocation or reallocation shall not affect the amount of the deduction to which a taxpayer is entitled under section 164 for a year in which he made payment (including payments made by withholding) of an amount which was designated as being in respect of his liability for a qualified tax. However, to the extent that an amount which was paid by a taxpayer and designated as being in respect of his liability for a qualified tax is allocated or reallocated in such a manner as to apply it toward the taxpayer's liability for the Federal income tax, such allocation or reallocation shall be treated as a refund to the taxpayer of an amount paid in respect of a State income tax, and shall be included in the gross income of the taxpayer to the extent appropriate under section 111 and the regulations thereunder in the year in which the allocation or reallocation is made. See section 451 and the regulations thereunder. Similarly, to the extent that an amount which was paid by a taxpayer and designated as being in respect of his Federal income tax liability is allocated or reallocated in such a manner as to apply it toward his liability for a qualified tax, such allocation or reallocation shall be treated as a payment made by the taxpayer in respect of a State income tax, and shall be deductible under section 164 in the year in which the allocation or reallocation is made. The Internal Revenue Service shall notify the taxpayer in writing of any allocation or reallocation of tax liabilities in a proportion other than that of the respective tax liabilities shown on the taxpayer's returns. (2) Amounts of collections and liabilities. For purposes of this paragraph the aggregate amount that has been collected from a taxpayer or his employer in respect of tax liability shall include the amounts of interest provided in chapter 67, and additions to tax and assessable penalties provided in chapter 68, which are collected with respect to such tax; but shall not include criminal fines provided in chapter 75, or in title 18 of the United States Code, which are collected with respect to offenses relating to such tax. (See subparagraph (3) of this paragraph (e) with respect to the treatment of such criminal fines.) However, for purposes of this paragraph, the amount of the taxpayer's liability for each tax shall exclude his liability for such interest additions to tax, and assessable penalties with respect to such tax, and his liability for criminal fines imposed with respect to offenses relating to such tax. For purposes of this paragraph, the amount of the taxpayer's liability for each tax shall be computed by taking credits into account, except that there shall be no reduction for any amounts paid on account of such liability, whether by means of withholding, estimated tax payment, or otherwise. (3) Special rules relating to criminal fines. (i) Except as otherwise provided in subdivision (ii) of this subparagraph, when a criminal charge is brought against a taxpayer with respect to a taxable year pursuant to chapter 75, or to title 18 of the United Qualified State Tax References: Page 106 of 148 States Code, or to a corresponding provision of a qualified tax law, alleging that an offense was committed against the United States with respect to the Federal income tax or against a State with respect to a qualified tax, and an amount of money is collected by the Federal Government as a fine as a result of such charge, then the Federal Government shall remit an amount to each State, if any, which is an affected jurisdiction. The amount remitted to each such State shall bear the same proportion to the total amount collected as a fine as the taxpayer's liability with respect to the qualified taxes of that State bears to the aggregate of the taxpayer's income tax liabilities to all affected jurisdictions for the taxable year, as determined under subparagraphs (1) and (2) of this paragraph (e). For purposes of this subparagraph, an affected jurisdiction is (A) a jurisdiction with respect to the tax of which a criminal charge described in the preceding sentence was brought for the taxable year, or (B) a jurisdiction with respect to the Federal income tax or the qualified tax of which the acts or omissions alleged in such a criminal charge would constitute the basis for the bringing of a criminal charge for the same taxable year. However, in no case shall the amount received by an affected State, or the amount of the excess of the amount received by the Federal Government over the amount of its remissions to States, with respect to a fine exceed the maximum fine prescribed by statute for the offense against that jurisdiction with respect to which a criminal charge was brought, or with respect to which the bringing of a criminal charge could have been supported on the basis of the acts or omissions alleged in a criminal charge brought. For purposes of this subparagraph, the amount collected as a fine as a result of a criminal charge shall include amounts paid in settlement of an actual or potential liability for a fine, amounts paid pursuant to a conviction and amounts paid pursuant to a plea of guilty or nolo contendere. (ii) If a criminal charge described in the first sentence of subdivision (i) of this subparagraph is actually brought with respect to the income tax of every affected jurisdiction with respect to the taxable year, and if a Court adjudicates on the merits the taxpayer's liability for a fine to each such jurisdiction, and includes in its decree a direction of the amount, if any, to be paid as a fine to each such jurisdiction, then that decree shall govern the allocation of the amount of money collected by the Federal Government as a fine with respect to the taxable year. (4) Examples. The application of this paragraph may be illustrated by the following examples: Example (1). The total combined amount of State X qualified tax and Federal income tax collected from A, a resident of State X, for the taxable year is $5,100. The amounts of A's liabilities for such taxes for that year are $800 to State X and $4,000 to the Federal Government. Since A's tax liability to State X is one-sixth of the combined tax liability ($4,800), one-sixth ($50) of the amount to be refunded to A ($300) is chargeable against State X's account, and five-sixths ($250) is chargeable against the Federal Government's account. Qualified State Tax References: Page 107 of 148 Example (2). Assume the same facts as in example (1) except that the total amount collected from A is $4,500. Since A's liabilities for the State X tax and the Federal tax are one-sixth and five-sixths, respectively, of the combined tax liability, the Federal Government shall pay over to State X one-sixth ($750) of the amount actually collected from A, and the Federal Government shall retain five-sixths ($3,750). Example (3). The total amount of State X qualified tax, State Y qualified tax, and Federal income tax collected from B, a resident of State X who is employed in State Y, for the taxable year is $5,500. The amounts of B's liabilities for such taxes for that year are: $250 for the State X tax (after allowance of a credit for State Y's qualified tax), $750 for the State Y tax, and $4,000 for the Federal tax. Since B's liability for the State X tax ($250) is 5 percent of the combined tax liability ($5,000), his liability for the State Y tax ($750) is 15 percent of such combined liability, and his liability for the Federal tax ($4,000) is 80 percent of such combined liability, the total amount to be refunded to B ($500) shall be chargeable in the following manner: 5 percent ($25) against State X's account, 15 percent ($75) against State Y's account, and 80 percent ($400) against the Federal Government's account. Example (4). C is liable for $2,000 in Federal income tax and $500 in State X qualified tax (a resident tax) for the taxable year. However, on his Federal income tax return for such year, C erroneously described himself as a resident of State Y (which does not have a qualified tax), and he filed with such return his declaration to the effect that he had no qualified tax liability for the year. Accordingly, C paid only $2,000 for his Federal tax liability, and such amount was retained in the account of the Federal Government. Subsequently, C's error is discovered. The amount collected by the Federal Government from C for such year must be allocated between the Federal Government and State X in proportion to C's tax liability to both. Accordingly, the Federal Government must pay over to State X the amount of $400 (which is 1/5 ($500/$2,500) of the $2,000 collected). If the Federal Government collects from C the additional $500 owed, it will retain $400 of such amount and pay the remaining $100 to State X. Similarly, if the Federal Government collects from C any interest, or any additions to tax or assessable penalties under chapter 68, 4/5 of the amount of such collections shall be retained by the Federal Government and 1/5 of such amount shall be paid over to State X. However, notwithstanding the allocation of the funds between the taxing jurisdictions, C's liability for the $500 retains its character as a liability for State X tax. Therefore, any interest, additions to tax, or assessable penalties imposed with respect to the State X tax shall be imposed with respect to C's full $500 liability for such tax, notwithstanding the fact that amounts collected with respect to such items shall be allocated 4/5 to the Federal Government. Example (5). A criminal charge is brought against D pursuant to chapter 75, alleging that he willfully evaded the payment of Federal income tax by failing to report interest income derived Qualified State Tax References: Page 108 of 148 from obligations of the United States. D enters a plea of non contendere to the charge and pays $2,500 as a fine to the Federal Government. The act alleged in the criminal charge would not support the bringing of a criminal charge under a State law corresponding to chapter 75, or to title 18 of the United States Code, with respect to the qualified tax of any State; accordingly, the United States is the only affected jurisdiction, and no remittances shall be made to any State with respect to the amount collected by the Federal Government as a fine. Example (6). A criminal charge is brought against E pursuant to chapter 75, alleging that he willfully attempted to evade the assessment of liability for both Federal income tax and the qualified tax of State X by filing false and fraudulent income tax returns. E's case is settled upon the condition that he pay a fine in the amount of $5,000. As determined pursuant to subparagraph (2) of this paragraph, E's liabilities for the taxable year are in the amounts of $7,200 to the Federal Government and $800 to State X. Accordingly, after the Federal Government collects the fine, $500 ($5,000+$800X$8,000) is remitted to State X. Example (7). Assume the same facts as in example (6), except that E is tried and convicted on both charges, and pursuant to court decree he pays to the United States a fine of $6,000 with respect to each charge, or a total of $12,000. Because a criminal charge was brought with respect to each affected jurisdiction, and the allocation of the total amount paid as a fine was specifically imposed by a court decree, the direction of the Court shall govern the allocation. Accordingly, after the Federal Government collects the fines it pays over $6,000 to the account of State X. [T.D. 7577, 43 F.R. 59361, Dec. 20, 1978] 26 CFR s 301.6361-1, Collection and administration of qualified taxes. ------------ Excerpt from pages 160495-160502 CODE OF FEDERAL REGULATIONS TITLE 26 -- INTERNAL REVENUE CHAPTER I -- INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY SUBCHAPTER F -- PROCEDURE AND ADMINISTRATION PART 301 -- PROCEDURE AND ADMINISTRATION COLLECTION SEIZURE OF PROPERTY FOR COLLECTION OF TAXES Current through January 1, 1997; 61 F.R. 69366 Qualified State Tax References: Page 109 of 148 s 301.6361-2 Judicial and administrative proceedings; Federal representation of State interests. (a) Civil proceedings -- (1) General rule. Any person shall have the same right to bring or contest a civil action, and to obtain a review thereof, with respect to a qualified tax (including the current collection thereof) in the same court or courts which would be available to him, and pursuant to the same requirements and procedures to which he would be subject, under chapter 76 (relating to judicial proceedings), and under title 28 of the United States Code (relating to the judiciary and judicial procedure), if the tax were imposed by section 1 or chapter 24 of the Internal Revenue Code. For purposes of this section, the term "person" includes the Federal Government. Except as provided in subparagraph (2) of this paragraph (a), to the extent that the preceding sentence provides judicial procedures (including review procedures) with respect to any matter, such procedures shall replace civil judicial procedures under State law. (2) Exception. The right or power of the courts of any State to pass on matters involving the constitution of such State is unaffected by any provision of this paragraph; however, the jurisdiction of a State court in such matters shall not extend beyond the issue of constitutionality. Thus, if in a case involving the validity of a qualified tax statute under the State constitution, the State court holds such statute constitutional, such court shall not proceed to decide the amount of the tax liability. (b) Criminal proceedings. Only the Federal Government shall have the right to bring a criminal action with respect to a qualified tax (including the current collection thereof). Such an action shall be brought in the same court or courts which would be available to the Federal Government, and pursuant to the same requirements and procedures to which the Federal Government would be subject, if the tax were imposed by section 1 or chapter 24 of the Internal Revenue Code. (c) Administrative proceedings. Any person shall have the same rights in administrative proceedings of the Internal Revenue Service with respect to a qualified tax (including the current collection thereof) which would be available to him, and shall be subject to the same administrative requirements and procedures to which he would be subject, if the tax were imposed by section 1 or chapter 24 of the Internal Revenue Code. (d) United States representation of State interests -- (1) General rule. Except as provided in subparagraphs (2) and (3) of this paragraph (d), the Federal Government shall appear on behalf of any State the qualified tax of which it collects (or did collect for the year in issue), and shall represent such State's interests in any administrative or judicial proceeding, either civil or criminal in nature, which relates to the administration and collection of such qualified tax, in the same manner as it represents the interests of the United States in corresponding proceedings involving Federal income tax matters. Qualified State Tax References: Page 110 of 148 (2) Exceptions. The Federal Government shall not so represent a State's interests either -- (i) In proceedings in a State court involving the constitution of such State, to the extent of such constitutional issue, or (ii) In proceedings in any court involving the relationship between the United States and the State, to the extent of the issue pertaining to such relationship, if either: (A) The proceeding is one which is initiated by the United States against the State, or by the State against the United States, and no individual (except in his official capacity as a governmental official) is an original party to the proceeding, or (B) The proceeding is not one described in (A), but the State elects to represent its own interests to the extent permissible under this subdivision. (3) Finality of Federal administrative determinations. State and local government officials and employees may not review Federal administrative determinations concerning tax liabilities of, refunds owed to, or criminal prosecutions of, individuals with respect to qualified taxes. See, however, s 301.6363-3 relating to State administration of a qualified tax with respect to transition years. If requested by an electing State, the Commissioner or his delegate may, under terms and conditions set forth in an agreement with such State, permit such State to carry on operations supplementary to the Federal administration of the State's qualified tax (including supplemental audits or examinations of tax returns by State audit personnel), but all administrative determinations shall be made by the Federal Government without review by the State. An agreement which permits supplemental audits or examinations of tax returns by State audit personnel shall provide that the audits and examinations shall be conducted under the supervision and control of the Commissioner or his delegate, who shall have the authority to determine which returns shall be audited and when the audits shall occur. Also, such agreements shall provide that the results of any such supplemental audit shall be referred to the Commissioner or his delegate for final administrative determination. The Commissioner or his delegate shall, to the extent permitted by law, allow an electing State reasonable access to tax returns and other appropriate records and information relating to its qualified tax for the purpose of conducting any such supplemental operations. In addition, the Secretary or his delegate shall permit an electing State to inspect the workpapers which are compiled in the course of verification by the Treasury Department of the correctness of the accounting by which the amounts of the actual net collections attributable to the electing State's qualified taxes are determined. [T.D. 7577, 43 F.R. 59364, Dec. 20, 1978] Qualified State Tax References: Page 111 of 148 26 CFR s 301.6361-2, Judicial and administrative proceedings; Federal representation of State interests. ------------ Excerpt from pages 160503-160505 CODE OF FEDERAL REGULATIONS TITLE 26 -- INTERNAL REVENUE CHAPTER I -- INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY SUBCHAPTER F -- PROCEDURE AND ADMINISTRATION PART 301 -- PROCEDURE AND ADMINISTRATION COLLECTION SEIZURE OF PROPERTY FOR COLLECTION OF TAXES Current through January 1, 1997; 61 F.R. 69366 s 301.6361-3 Transfers to States. (a) Periodic transfers. In general, amounts collected by the Federal Government which are allocable to qualified taxes (including criminal fines which are required to be paid to a State, as determined under paragraph (f)(3) of s 301.6361-1) shall be promptly transferred to each State imposing such a tax. Transfers of such amounts, based on percentages of estimated Federal collections, shall be made not less frequently than every third business day unless the State agrees to accept transfers at less frequent intervals. (b) Determination of amounts of transfers. The amounts allocable to the qualified taxes of each State for purposes of periodic transfer shall be determined as a percentage of the estimated aggregate net individual income tax collections made by the Federal Government. For purposes of this paragraph, the "aggregate net individual income tax collections" shall include amounts collected on account of the Federal individual income tax and all qualified taxes by all means (including withholding, tax returns, and declarations of estimated tax), and shall be reduced to the extent of any liability to taxpayers for credits or refunds by reason of overpayments of such taxes. The percentage of the estimated amount of such collections which is allocated to each State shall be based on an estimate which is to be made by the Office of Tax Analysis prior to the beginning of each calendar year as to what portion of the estimated aggregate net individual income tax collections for the forthcoming year will be attributable to the qualified taxes of that State. Each State will be notified prior to the beginning of each calendar year of the amount which it is estimated that the State will receive by application of that percentage for the year. However, the Office of Tax Analysis shall, from time to time throughout the calendar year, revise the percentage estimates when such a revision is, in the opinion of that office necessary to conform such estimates to Qualified State Tax References: Page 112 of 148 the actual receipts. When such a revision is made, the payments to the State will be adjusted accordingly. (c) Adjustment of difference between actual collections and periodic transfers. At least once annually the Secretary or his delegate shall determine the difference between the aggregate amount of the actual net collections made (taking into account credits, refunds, and amounts received by withholding with respect to which a tax return is not filed) which is attributable to each State's qualified taxes during the preceding year and the aggregate amount actually transferred to such State based on estimates during such year. The amount of such difference, as so determined, shall be a charge against, or an addition to, the amounts otherwise determined to be payable to the State. (d) Recipient of transferred funds. All funds transferred pursuant to section 6361(c) and paragraph (a) of this section shall be transferred by the Federal Government to the State official designated by the Governor to receive such funds in the State agreement pursuant to paragraph (d)(5) of s 301.6363-1, unless the Governor notifies the Secretary or his delegate in writing of the designation of a different State official to receive the funds. [T.D. 7577, 43 F.R. 59365, Dec. 20, 1978] 26 CFR s 301.6361-3, Transfers to States. ------------ Excerpt from pages 160506-160507 CODE OF FEDERAL REGULATIONS TITLE 26 -- INTERNAL REVENUE CHAPTER I -- INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY SUBCHAPTER F -- PROCEDURE AND ADMINISTRATION PART 301 -- PROCEDURE AND ADMINISTRATION COLLECTION SEIZURE OF PROPERTY FOR COLLECTION OF TAXES Current through January 1, 1997; 61 F.R. 69366 s 301.6361-4 Definitions. For purposes of the regulations in this part under subchapter E of chapter 64 of the Internal Revenue Code of 1954, relating to collection and administration of State individual income taxes -- (a) State agreement. The term "State agreement" means an agreement between a State and the Federal Government which was entered into pursuant to section 6363 and the regulations Qualified State Tax References: Page 113 of 148 thereunder, and which provides for the Federal collection and administration of the qualified tax or taxes of that State. (b) Qualified tax. The term "qualified tax" means a tax which is a "qualified State individual income tax", as defined in section 6362 (including subsection (f)(1) thereof, which requires that a State agreement be in effect) and the regulations thereunder. (c) Chapters and subtitles. References in regulations in this part under subchapter E to chapters and subtitles are to chapters and subtitles of the Internal Revenue Code of 1954, unless otherwise indicated. (d) Subchapter E. The term "subchapter E" means subchapter E of chapter 64 of the Internal Revenue Code of 1954, relating to collection and administration of State individual income taxes, as amended from time to time. [T.D. 7577, 43 F.R. 59365, Dec. 20, 1978] 26 CFR s 301.6361-4, Definitions. ------------ Excerpt from page 160508 CODE OF FEDERAL REGULATIONS TITLE 26 -- INTERNAL REVENUE CHAPTER I -- INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY SUBCHAPTER F -- PROCEDURE AND ADMINISTRATION PART 301 -- PROCEDURE AND ADMINISTRATION COLLECTION SEIZURE OF PROPERTY FOR COLLECTION OF TAXES Current through January 1, 1997; 61 F.R. 69366 s 301.6361-5 Effective date of section 6361. Section 6361 shall take effect on the first January 1 which is more than 1 year after the first date on which at least one State has filed a notice of election with the Secretary or his delegate to enter into a State agreement. For purposes of this section, a notice of election shall be deemed to have been filed by a State only if there is no defect in either the State's notice of election or the State's tax law of which the Secretary notified the Governor pursuant to paragraph (c) of s 301.6363-1, and which has not been retroactively cured under the provisions of such paragraph. [T.D. 7577, 43 F.R. 59365, Dec. 20, 1978] Qualified State Tax References: Page 114 of 148 26 CFR s 301.6361-5, Effective date of section 6361. ------------ Excerpt from page 160509 CODE OF FEDERAL REGULATIONS TITLE 26 -- INTERNAL REVENUE CHAPTER I -- INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY SUBCHAPTER F -- PROCEDURE AND ADMINISTRATION PART 301 -- PROCEDURE AND ADMINISTRATION COLLECTION SEIZURE OF PROPERTY FOR COLLECTION OF TAXES Current through January 1, 1997; 61 F.R. 69366 s 301.6362-1 Types of qualified tax. (a) In general. A qualified tax may be either a "qualified resident tax" within the meaning of paragraph (b) of this section, or a "qualified nonresident tax" within the meaning of paragraph (c) of this section. (b) Qualified resident tax. A tax imposed by a State on the income of individuals, estates, and trusts which are residents of such State within the meaning of section 6362(e) and s 301.6362-6 shall be a "qualified resident tax" if it is either: (1) A tax based on Federal taxable income which meets the requirements of section 6362(b), (e), and (f), and of ss 301.6362-2, 301.6362-6, and 301.6362-7; or (2) A tax which is a percentage of the Federal tax and which meets the requirements of section 6362(c), (e), and (f), and of ss 301.6362-3, 301.6362-6, and 301.6362-7. (c) Qualified nonresident tax. A tax imposed by a State on the wage and other business income of individuals who are not residents of such State within the meaning of section 6362(e)(1) and paragraph (b) of s 301.6362-6 shall be a "qualified nonresident tax" if it meets the requirements of section 6362(d), (e), and (f), and of ss 301.6362-5, 301.6362-6, and 301.6362-7. [T.D. 7577, 43 F.R. 59366, Dec. 20, 1978] 26 CFR s 301.6362-1, Types of qualified tax. ------------ Excerpt from page 160510 CODE OF FEDERAL REGULATIONS Qualified State Tax References: Page 115 of 148 TITLE 26 -- INTERNAL REVENUE CHAPTER I -- INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY SUBCHAPTER F -- PROCEDURE AND ADMINISTRATION PART 301 -- PROCEDURE AND ADMINISTRATION COLLECTION SEIZURE OF PROPERTY FOR COLLECTION OF TAXES Current through January 1, 1997; 61 F.R. 69366 s 301.6362-2 Qualified resident tax based on taxable income. (a) In general. A tax meets the requirements of section 6362(b) and this section only if it is imposed on the amount of the taxable income, as defined in section 63, of the individual, estate, or trust, adjusted -- (1) By subtracting an amount equal to the amount of the taxpayer's interest on obligations of the United States which was included in his gross income for the taxable year; (2) By adding an amount equal to the amount of the taxpayer's net State income tax deduction, as defined in paragraph (a) of s 301.6362-4, for the taxable year; (3) By adding an amount equal to the amount of the taxpayer's net tax-exempt income, as defined in paragraph (b) of s 301.6362-4, for the taxable year; and (4) If a credit is allowed against the tax in accordance with paragraph (b)(3) of this section for sales tax imposed by the State or a political subdivision thereof, by adding an amount equal to the amount of the taxpayer's deduction under section 164(a)(4) for such sales tax. The tax may provide for either a single rate or multiple rates which vary with the amount of taxable income, as adjusted. (b) Permitted adjustments. A tax which otherwise meets the requirements of paragraph (a) of this section shall not be deemed to fail to meet such requirements solely because it provides for one or more of the following adjustments: (1) A credit meeting the requirements of paragraph (c) of s 301.6362-4 is allowed against the tax for the taxpayer's income tax liability to another State or a political subdivision thereof. (2) A tax is imposed on the amount taxed under section 56 (relating to the minimum tax for tax preferences). (3) A credit is allowed against the tax for all or a portion of any general sales tax imposed by the State or a political Qualified State Tax References: Page 116 of 148 subdivision thereof with respect to sales either to the taxpayer or to one or more of his dependents. (c) Method of making mandatory adjustments. The mandatory adjustments provided in paragraph (a) of this section shall be made directly to taxable income. Except as provided in paragraph (c)(2) of s 301.6362-4, no account shall be taken of any reduction or increase in the Federal adjusted gross income which would result from the exclusion from, or inclusion in, gross income of the items which are the subject of the adjustments. Thus, for example, when for purposes of the calculation the taxpayer's Federal taxable income is adjusted to reflect the exclusion from gross income of interest on obligations of the United States, no change shall be made in the amount of the taxpayer's deduction for medical expenses, or in the amount of his charitable contribution base, even though such amounts would ordinarily depend upon the amount of adjusted gross income. [T.D. 7577, 43 F.R. 59366, Dec. 20, 1978] 26 CFR s 301.6362-2, Qualified resident tax based on taxable income. ------------ Excerpt from pages 160511-160512 CODE OF FEDERAL REGULATIONS TITLE 26 -- INTERNAL REVENUE CHAPTER I -- INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY SUBCHAPTER F -- PROCEDURE AND ADMINISTRATION PART 301 -- PROCEDURE AND ADMINISTRATION COLLECTION SEIZURE OF PROPERTY FOR COLLECTION OF TAXES Current through January 1, 1997; 61 F.R. 69366 s 301.6362-3 Qualified resident tax which is a percentage of Federal tax. (a) In general. A tax meets the requirements of section 6362(c) and this section only if: (1) The tax is imposed as a single specified percentage of the excess of the taxes imposed by chapter 1 over the sum of the credits allowable under part IV of subchapter A of chapter 1 (other than the credits allowable under sections 31 and 39), and (2) The amount of the tax is decreased by the amount of the decrease in such liability which would result from excluding from the taxpayer's gross income an amount equal to the amount of interest on obligations of the United States which was included Qualified State Tax References: Page 117 of 148 in his gross income for the taxable year. (b) Permitted adjustments. A tax which otherwise meets the requirements of paragraph (a) of this section shall not be deemed to fail to meet such requirements solely because it provides for one or more of the following three adjustments: (1) The amount of a taxpayer's liability for tax is increased by the amount of the increase in such liability which would result from including in such taxpayer's gross income all of the following: (i) An amount equal to the amount of his net State income tax deduction, as defined in paragraph (a) of s 301.6362-4, for the taxable year, (ii) An amount equal to the amount of his net tax-exempt income, as defined in paragraph (b) of s 301.6362-4, for the taxable year, and (iii) If a credit is allowed against the tax under paragraph (b)(3) of this section for sales tax imposed by the State or a political subdivision thereof, an amount equal to the amount of his deduction under section 164(a)(4) for such sales tax. (2) A credit meeting the requirements of paragraph (c) of s 301.6362-4 is allowed against the tax for the income tax of another State or a political subdivision thereof. (3) A credit is allowed against the tax for all or a portion of any general sales tax imposed by the State or a political subdivision thereof with respect to sales either to the taxpayer or to one or more of his dependents. (c) Method of making adjustments. Except as specifically provided in paragraphs (a)(2) and (b)(1) of this section and in paragraph (c)(2) of s 301.6362-4, no account shall be taken of any reduction or increase in the Federal adjusted gross income which would result from the exclusion from, or inclusion in, gross income of the items which are the subject of the adjustments provided in those paragraphs. Thus, for example, when for purposes of the calculation the taxpayer's Federal income tax liability is adjusted to reflect the exclusion from gross income of interest on obligations of the United States, no change shall be made in the amount of the taxpayer's deduction for medical expenses, or in the amount of his charitable contribution base, even though such amounts would ordinarily depend upon the amount of adjusted gross income. Also, when calculating the adjusted Federal tax liability to which the rate of the State tax is to be applied, no adjustment shall be made in the amount of any credit against Federal tax to which a taxpayer is entitled. [T.D. 7577, 43 F.R. 59366, Dec. 20, 1978] 26 CFR s 301.6362-3, Qualified resident tax which is a percentage of Federal tax. Qualified State Tax References: Page 118 of 148 ------------ Excerpt from pages 160513-160514 CODE OF FEDERAL REGULATIONS TITLE 26 -- INTERNAL REVENUE CHAPTER I -- INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY SUBCHAPTER F -- PROCEDURE AND ADMINISTRATION PART 301 -- PROCEDURE AND ADMINISTRATION COLLECTION SEIZURE OF PROPERTY FOR COLLECTION OF TAXES Current through January 1, 1997; 61 F.R. 69366 s 301.6362-4 Rules for adjustments relating to qualified resident taxes. (a) Net State income tax deduction. For purposes of section 6362 (b)(1)(B) and (c)(3)(B), and ss 301.6362-2 and 301.6362-3, the "net State income tax deduction" shall be the excess (if any) of (1) the amount deducted from income under section 164(a)(3) as taxes paid to a State or to a political subdivision thereof, over (2) the amounts included in income as recoveries of prior income taxes which were paid to a State or to a political subdivision thereof and which had been deducted under section 164(a)(3). (b) Net tax-exempt income. For purposes of section 6362(b)(1)(C) and (c)(3)(A) and ss 301.6362-2 and 301.6362-3, the "net tax-exempt income" shall be the excess (if any) of: (1) The sum of (i) the interest on obligations described in section 103(a)(1) other than obligations of the State imposing the tax and the political subdivisions thereof, and (ii) the interest on obligations described in such section of such State and the political subdivisions thereof which under the law of the State is subject to the tax; over (2) The sum of (i) the amount of deductions allocable to the interest described in subparagraph (1)(i) or (ii) of this paragraph (b), which is disallowed pursuant to section 265 and the regulations thereunder, and (ii) the amount of the adjustment to basis allocable to such obligations which is required to be made for the taxable year under section 1016(a)(5) or (6). For purposes of subparagraph (1)(ii) of this paragraph (b), a State may, at its option, subject to the tax the interest from all, none, or some of its section 103(a)(1) obligations and those of its political subdivisions. For example, a State may subject to tax all of such obligations other than those which it or its political subdivisions issued prior to a specified date, which may be the date that subchapter E became applicable to the State. Qualified State Tax References: Page 119 of 148 (c) Credits for taxes of other jurisdictions -- (1) In general. A State tax law that provides for a credit, pursuant to section 6362(b)(2)(B) or (C) or section 6362(c)(4), and paragraph (b)(1) of s 301.6362-2 or paragraph (b)(2) of s 301.6362-3, for income tax of another State or a political subdivision thereof shall provide that, in the case of each taxpayer, the amount of the credit shall equal the amount of his liability with respect to such other jurisdiction's tax for the taxable year which runs concurrently with, or which ends in, the taxable year used by the taxpayer for purposes of the State tax which provides for the credit. Such a credit may be allowed with respect to every income tax (whether or not qualified) imposed on the taxpayer by another State or a political subdivision thereof, or only with respect to certain of such taxes. However, for purposes of this paragraph, the amount which is treated as being the amount of the taxpayer's liability with respect to any such tax imposed by another jurisdiction shall not exceed the amount of liability for such tax which is both -- (A) Reported to the taxing authorities responsible for collecting such other jurisdiction's tax, and (B) Substantiated pursuant to the requirements of paragraph (c)(1)(ii) of s 301.6361-1. (2) Limitation. The amount of any credit allowed for the taxable year pursuant to this paragraph shall not exceed the product of the amount of the resident tax against which the credit is allowed, as computed without subtracting any such credit, multiplied by a fraction the numerator of which is the amount of income subject to tax by both the State imposing the resident tax against which the credit is allowed and the other jurisdiction whose tax is being credited, and the denominator of which is the amount of income subject to tax by the State imposing the resident tax against which the credit is allowed. For purposes of the preceding sentence, "income subject to tax" means the amount of the taxpayer's adjusted gross income which is taken into account for purposes of computing tax liability; in the case of a qualified resident tax, an appropriate modification shall be made to take into account any adjustments which are made pursuant to paragraph (a)(1) and (3) of s 301.6362-2, or pursuant to paragraph (a)(2) or (b)(1)(ii) of s 301.6362-3. (3) Examples. The application of this paragraph may be illustrated by the following examples: Example (1). (i) A, a calendar-year, cash-basis taxpayer, is a resident of State X throughout the taxable year. For such year, his adjusted gross income for Federal income tax purposes consists of $24,000, consisting of $3,000 derived from employment in State X, $5,000 derived from employment in State Y, $15,000 derived from employment in State Z, and $1,000 in interest income from United States savings bonds. In addition, he received net tax-exempt income in the amount of $2,000. For the taxable year, he incurs liabilities of $200 for the State Y nonresident income tax, and $1,400 for the State Z nonresident income tax. State X, Qualified State Tax References: Page 120 of 148 which has in effect a State agreement for the taxable year, imposes a resident tax against which credits are allowed for the nonresident taxes imposed by States Y and Z. Without taking any such credits into account, however, the amount of A's liability for such resident tax would be $1,500. A properly reports his nonresident income tax liabilities to States Y and Z at the same time that he files his return with respect to the State X tax, and he substantiates on such return his liabilities to States Y and Z. (ii) The amount of A's income subject to tax in State X is $25,000 (his adjusted gross income of $24,000, minus the United States savings bond income of $1,000, plus the net tax-exempt income of $2,000). The amount of the credit allowable against the State X resident tax for the amount of A's liability with respect to the State Y nonresident tax is calculated as follows: The maximum amount of credit is the actual amount of his liability to Y, or $200. Under subparagraph (2) of this paragraph, the amount of the credit is limited to $300 ($1,500 X $5,000/$25,000). Thus, such limit has no effect, and the full $200 is allowable as a credit against A's liability for the resident tax of State X. The amount of the credit allowable against the State X resident tax for the amount of A's liability with respect to the State Z nonresident tax is calculated as follows: The maximum amount of the credit is the actual amount of his liability to Z, or $1,400. Under subparagraph (2) of this paragraph, the amount of the credit is limited to $900 ($1,500 X $15,000/$25,000). Thus, such limit has the effect of reducing to $900 the amount of the credit allowable for tax of State Z against A's liability for the resident tax of State X. Example (2). (i) B, a calendar-year, cash-basis taxpayer, is a resident of State X employed in State Y through March 14, 1977. On March 15, 1977, B becomes a resident of State Z and remains a resident of such State through the remainder of 1977. For 1977, the amount of B's adjusted gross income for Federal income tax purposes is $20,000, consisting of $6,000 derived from employment in State Y which B held during the period of his residence in State X, $12,000 derived from employment in State Z which B held during the period of his residence in State Z, and $2,000 in interest income from various bank accounts. During 1977, B has no interest income from United States obligations, and no tax- exempt income. For 1977, B incurs a liability of $200 to State Y on account of its nonresident income tax imposed with respect to his $6,000 of income derived from sources within that State. State Z, which has in effect a State agreement for 1977, imposes a resident income tax on B which, if B had been a resident of State Z for all of 1977, would amount to $1,200 prior to the allowance of any credits under this paragraph. However, by reason of paragraph (e)(1) of s 301.6362-6, B's liability for the resident tax of State Z, before taking into account credits allowed under this paragraph, is reduced to $960 ($1,200 X 292/365, or 4/5). Furthermore, State Z allows a credit for the nonresident tax imposed by State Y. (ii) The amount of the credit allowable against the State Z resident tax for the amount of B's liability with respect to the Qualified State Tax References: Page 121 of 148 State Y nonresident tax is calculated as follows: The maximum amount of the credit is the amount of his actual liability to State Y, or $200. Under subparagraph (2) of this paragraph, the amount of the credit is limited to $288 ($960 X $6,000/$20,000). Thus, such limit has no effect, and the full $200 is allowable as a credit for tax of State Y against B's liability for the resident tax of State Z. [T.D. 7577, 43 F.R. 59367, Dec. 20, 1978] 26 CFR s 301.6362-4, Rules for adjustments relating to qualified resident taxes. ------------ Excerpt from pages 160515-160517 CODE OF FEDERAL REGULATIONS TITLE 26 -- INTERNAL REVENUE CHAPTER I -- INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY SUBCHAPTER F -- PROCEDURE AND ADMINISTRATION PART 301 -- PROCEDURE AND ADMINISTRATION COLLECTION SEIZURE OF PROPERTY FOR COLLECTION OF TAXES Current through January 1, 1997; 61 F.R. 69366 s 301.6362-5 Qualified nonresident tax. (a) In general. A tax meets the requirements of section 6362(d) and this section only if: (1) The tax is imposed by a State which simultaneously imposes a resident tax meeting the requirements of section 6362(b) and s 301.6362-2 or of section 6362(c) and s 301.6362-3; (2) The tax is required to be computed in accordance with either the method prescribed in paragraph (b) of this section or another method of which the Secretary or his delegate approves upon submission by the State of the laws pertaining to the tax; (3) The tax is imposed only on the wage and other business income derived from sources within such State (as defined in paragraph (d) of this section), of all individuals each of whom derives 25 percent or more of his aggregate wage and other business income for the taxable year from sources within such State while he is neither (i) a resident of such State within the meaning of section 6362(e) and s 301.6362-6, nor (ii) exempt from liability for the tax by reason of a reciprocal agreement between such State and the State of which he is a resident within the meaning of those provisions; Qualified State Tax References: Page 122 of 148 (4) The amount of the tax imposed with respect to any individual does not exceed the amount of tax for which such individual would be liable under the qualified resident tax imposed by such State if he were a resident of the State for the period during which he earned wage or other business income from sources within the State, and if his taxable income for such period were an amount equal to the sum of the zero bracket amount (within the meaning of section 63(d) and determined as if he had been a resident of the State for such period) and the excess of: (i) The amount of his wage and other business income derived from sources within the State, over (ii) That portion of the sum of the zero bracket amount and the nonbusiness deductions (i.e., all deductions from adjusted gross income allowable in computing taxable income) taken into account for purposes of the State's qualified resident tax which bears the same ratio to such sum as the amount described in subdivision (i) of this subparagraph bears to his total adjusted gross income for the year; and (5) For purposes of the tax, wage or other business income is considered as being the income of the individual whose income it is for purposes of section 61. (b) Approved method of computing liability for qualified nonresident tax. A tax satisfies the requirement of paragraph (a)(2) of this section if the amount of the tax is computed either as a percentage of the excess of the amount described in paragraph (a)(4)(i) of this section over the amount described in paragraph (a)(4)(ii) of this section, or by application of progressive rates to such excess. (c) Definition of wage and other business income. For purposes of section 6362(d) and this section, the term "wage and other business income" means the following types of income: (1) Wages, as defined in section 3401(a) and the regulations thereunder, but for these purposes: (i) The amount of wages shall exclude amounts which are treated as wages under section 3402(o) or (p) (relating to supplemental unemployment compensation benefits, annuity payments, and voluntary withholding agreements), and amounts which are treated as disability payments to the extent that they are excluded from gross income for Federal income tax purposes, pursuant to section 105(d), and (ii) The amount of wages shall be reduced by those expenses which are directly related to the earning of such wages and with respect to which deductions are properly claimed from gross income in computing adjusted gross income; (2) Net earnings from self-employment, as defined in section 1402(a); and (3) The distributive share of income of any trade or Qualified State Tax References: Page 123 of 148 business carried on by a trust, estate, or electing small business corporation (as defined in section 1371(a) and the regulations thereunder), to the extent that such share: (i) Is includible in the gross income of the taxpayer for the taxable year, and (ii) Would constitute net earnings from self-employment if the trade or business were carried on by a partnership. For purposes of this subparagraph, "distributive share" includes the income of a trust or estate which is taxable to the taxpayer as a beneficiary under applicable Federal income tax rules, and the undistributed taxable income of an electing small business corporation which is taxable to the taxpayer as a shareholder under section 1373. (d) Income derived from sources within a State -- (1) Income attributable primarily to services. Except as otherwise provided by Federal statute (see paragraphs (h), (i), and (j) of s 301.6362-7), wage income and other business income (net earnings from self-employment or distributive shares) which is attributable more to services performed by the taxpayer than to a capital investment of the taxpayer shall be considered to have been derived from sources within a State only if the services of the taxpayer which give rise to the income are performed in such State. If for a taxable year only a portion of the taxpayer's services giving rise to the income from one employment, trade, or business is performed within a State, then it shall be presumed that the amount of income from such employment, trade, or business which is derived from sources within that State equals that portion of the total income derived from such employment, trade, or business for the year which the amount of time spent by the taxpayer for such year performing services with respect to that employment, trade, or business in that State bears to the aggregate amount of time spent by the taxpayer for such year performing all of such services. However, the presumption stated in the preceding sentence may be rebutted in the event that the taxpayer proves, by use of detailed records, that the correct allocation of his income is otherwise. (2) Income attributable primarily to investment. Except as otherwise provided by Federal statute (see paragraph (j) of s 301.6362-7), business income (net earnings from self-employment or distributive shares) which is attributable more to a capital investment of the taxpayer than to services performed by the taxpayer shall be considered to have been derived from sources within the State, if any, in which the significant activities of the trade or business are conducted. If for the taxable year only a portion of the significant activities conducted with respect to one trade or business is conducted within a certain State, then the portion of the taxpayer's total income for the year from such trade or business which is considered to be derived from sources within that State shall be computed as follows: (i) Allocation by records. The portion of the taxpayer's Qualified State Tax References: Page 124 of 148 total income from the trade or business which is considered to be derived from sources within the State shall be the portion which is allocable to such sources according to the records of the taxpayer or of the partnership, trust, estate, or electing small business corporation from which his income is derived, provided that the taxpayer establishes to the satisfaction of the district director, when requested to do so, that those records fairly and equitably reflect the income which is allocable to sources within the State. An allocation made pursuant to this subdivision shall be based on the location of the significant activities of the trade or business, and not on the location at which the taxpayer's personal services are performed. (ii) Allocation by formula. If the taxpayer (or the trade or business) does not keep records meeting the requirements of subdivision (i) of this subparagraph, or if the taxpayer fails to meet the burden of proof set forth therein, then the amount of the taxpayer's income from the trade or business which is considered to be derived from sources within the State shall be determined by multiplying the total of his income (as defined in paragraphs (c)(2) and (3) of this section) from the trade or business for the taxable year by the percentage which is the average of these three percentages: (A) Property percentage. The percentage computed by dividing the average of the value, at the beginning and end of the taxable year, of real and tangible personal property connected with the taxpayer's trade or business and located within the State, by the average of the value, at the beginning and end of the taxable year, of all such property located both within and without the State. For this purpose, real property shall include real property rented to the taxpayer in connection with the trade or business, or rented to the trade or business. (B) Payroll percentage. The percentage computed by dividing the total wages, salaries, and other compensation for personal services which is paid or incurred during the taxable year to employees in connection with the taxpayer's trade or business, and which would be treated as derived by such employees from sources within the State pursuant to subparagraph (1) of this paragraph (d), by the total of all such wages, salaries, and other compensation for personal services which is so paid or incurred without regard to whether such payments would be treated as derived by the employees from sources within the State. For purposes of this subdivision (ii), no amount paid as deferred compensation pursuant to a retirement plan to a former employee shall be taken into consideration. (C) Gross income percentage. The percentage computed by dividing the gross sales or charges for services performed by or through an agency located within the State by the total of all gross sales or charges for services performed both within and without the State. The sales or charges to be allocated to the State shall include all sales which are negotiated, and charges which are for services performed, by an employee, agent, agency, or independent contractor chiefly situated at, or working principally out of an office located within, the State. Qualified State Tax References: Page 125 of 148 (3) Income attributable to real estate investment. Notwithstanding subparagraph (2) of this paragraph (d), income and deductions from the rental of real property, and gain and loss from the sale, exchange, or other disposition of real property, shall not be subject to allocation under subparagraph (2), but shall be considered as entirely derived from sources located within the State in which such property is located. (4) Treatment of losses. A loss attributable to the taxpayer's employment, or to his conduct of, participation in, or investment in a trade or business, shall be allocated in the same manner as the income attributable to such employment or trade or business would be allocated pursuant to this paragraph. (5) Examples. The application of this paragraph may be illustrated by the following examples: Example (1). A, an employee who earns $10,000 in wage income attributable to services, and who has no other wage or other business income, spends 60 percent of his working time performing services for his employer in State X, 30 percent in State Y, and 10 percent in State Z. In the absence of the requisite proof to the contrary, A's wage income is considered to have been derived 60 percent from sources located within State X, 30 percent within State Y, and 10 percent within State Z. Assuming that A is a nonresident with respect to all three States, and that they all impose qualified nonresident taxes, then the qualified nonresident tax of State X is imposed on $6,000, the qualified nonresident tax of State Y is imposed on $3,000, and the qualified nonresident tax of State Z is not imposed on any of the income because A did not derive at least 25 percent of his wage and other business income from sources located within State Z. Example (2). B, who earns no wage income but who has a total of $10,000 of other business income for the taxable year, all of which is net income from self-employment attributable primarily to services, spends 45 percent of his working time performing services in State X, 30 percent in State Y, and 25 percent in State Z. However, the rates that B is able to charge for his services and the business expenses which he incurs vary in the different States, and he is able to prove by detailed records that his net income from self-employment was in fact derived 50 percent from sources located within State X, 35 percent from sources located within State Y, and 15 percent from sources located within State Z. Assuming that B is a nonresident with respect to all three States, and that they all impose qualified nonresident taxes, then the qualified nonresident tax of State X is imposed on $5,000, the qualified nonresident tax of State Y is imposed on $3,500, and the qualified nonresident tax of State Z is not imposed on any of the income because B did not derive at least 25 percent of his wage and other business income from sources located within State Z. Example (3). C is a partner in a profitable business concern, in which he has a substantial capital investment. His net earnings from self-employment attributable to his partnership interest are Qualified State Tax References: Page 126 of 148 $75,000 for the taxable year. The fair market value of the services which C performs for the partnership during the taxable year is $30,000. C's income is therefore attributable primarily to his capital investment. The partnership business is carried on partially within and partially without State X. Neither C nor the partnership maintains records from which the portion of C's $75,000 income which is considered to be derived from sources within State X can be satisfactorily proven. As determined under subparagraph (2) of this paragraph, the partnership's "property percentage" in State X is 70, its "payroll percentage" therein is 60, and its "gross income percentage" therein is 56. The amount of C's partnership income considered to be derived from sources within State X is $46,500 ($75,000 X62 percent). This result would obtain even if C's services for the partnership are performed entirely within State X. Example (4). Assume the same facts as in (3), except that the records of the partnership of which C is a member indicate that the net profits of the partnership are derived 40 percent from business activities conducted in State X, and 60 percent from business activities conducted in State Y. C is requested to prove that those records fairly and equitably reflect the income which is allocable to sources within State X. The documentary evidence which he adduces in support of the allocation made by the records shows how such allocation results from a careful step-by-step tracing of the profitability of each phase and aspect of the partnership's operations, and shows the State in which each such phase and aspect of the operations is conducted. C's proof is satisfactory to show that the percentage allocation, and the amount of his partnership income considered to be derived from sources within State X is $30,000, or $75,000 multiplied by 40 percent. This result would obtain even if B's services for the partnership are performed entirely within State X. [T.D. 7577, 43 F.R. 59367, Dec. 20, 1978] 26 CFR s 301.6362-5, Qualified nonresident tax. ------------ Excerpt from pages 160518-160522 CODE OF FEDERAL REGULATIONS TITLE 26 -- INTERNAL REVENUE CHAPTER I -- INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY SUBCHAPTER F -- PROCEDURE AND ADMINISTRATION PART 301 -- PROCEDURE AND ADMINISTRATION COLLECTION SEIZURE OF PROPERTY FOR COLLECTION OF TAXES Current through January 1, 1997; 61 F.R. 69366 Qualified State Tax References: Page 127 of 148 s 301.6362-6 Requirements relating to residence. (a) In general. A tax imposed by a State meets the requirements of section 6362(e) and this section if in effect it provides that: (1) The State of residence of an individual, estate, or trust is determined according to paragraph (1), (2), or (3) respectively, of section 6362(e), and according to paragraph (b), (c), or (d), respectively, of this section. (2) The liability for a resident tax imposed by such State upon an individual or trust which changes residence to another State in the taxable year is determined according to section 6362(e)(4) and paragraph (e) of this section. (3) The rules relating to current collection of tax apply as provided in section 6362(e)(5) and paragraph (f) of this section. (b) Residence of an individual -- (1) In general. Except as otherwise provided in subparagraph (5) of this paragraph (b), an individual is treated as a resident of a State with respect to a taxable year only if: (i) His principal place of residence (as defined in subparagraph (2) of this paragraph (b)) is within such State for a period of at least 135 consecutive days, at least 30 days of which are in such taxable year; or (ii) In the case of a citizen or resident of the United States who is not a resident of any State (determined as provided in subdivision (i) of this subparagraph) with respect to such taxable year, his domicile (as defined in subparagraph (3) of this paragraph (b)) is in such State for at least 30 days during such taxable year. With respect to an individual who is a resident (determined as provided in subdivision (i) of this subparagraph) of more than one State during a taxable year, see paragraph (e) of this section. (2) Principal place of residence -- (i) Definition. For purposes of subparagraph (1)(i) of this paragraph (b), and paragraph (d)(4) of this section, the term "principal place of residence" shall mean the place which is an individual's primary home. An individual's temporary absence from his primary home shall not effect a change with respect thereto. On the other hand, if an individual moves to another State, other than as a mere transient or sojourner, he shall be treated as having changed the location of his primary home. (ii) Examples. The application of this subparagraph may be illustrated by the following examples: Example (1). A has a city home and a country home. He resides in the city home for 7 months of the year and uses the address of that home as his legal residence for purposes of driver's Qualified State Tax References: Page 128 of 148 license, automobile registration, and voter registration. He resides in the country home 5 months of the year. His city home is considered his principal place of residence. Example (2). During the taxable year, B, a construction worker, is employed at several different locations in different States. The duration of each job on which he is employed ranges from a few weeks to several months, and he knows when he accepts a job what its approximate duration will be. He owns a house in State X which he uses as his legal residence for purposes of driver's license, automobile registration, and voter registration. In addition, his family lives there during the entire year, and B lives there during periods between jobs. However, the duration of the jobs and the distance between the job-sites and his house require him to live in the localities of the respective job-sites during the period of his employment, although occasionally he returns to his house in State X on weekends. B's house in State X is his principal place of residence during all of the taxable year. Example (3). C, a dependent of his parents who are residents of State X, is a full-time student in a 4-year degree program at a college in State Y. During the 9-month academic year, C lives on the college campus, but he returns to his parents' home in State X for the summer recess. C gives the State Y as his residence for purposes of his driver's license and voter registration, but lists the address of his parents' home in State X as his "permanent address" on the records of the college which he attends. Although C's domicile remains at his parents' home in State X, his presence in State Y cannot be regarded as that of a mere transient or sojourner; accordingly, C's principal place of residence is in State Y for that portion of the taxable year during which he attends college. Example (4). D loses his job in State X, where he lived and worked for many years. After a series of unsuccessful attempts to find other employment in State X, he accepts a job in State Y. D gives up his apartment in State X and moves to State Y upon commencing his new job; however, he intends to continue to explore available employment opportunities in State X so that he may return there as soon as an opportunity to do so arises. D changes his principal place of residence when he moves to State Y. (3) Domicile defined. For purposes of subparagraph (1)(ii) of this paragraph (b), and paragraph (d)(4) of this section, the term "domicile" shall mean an individual's fixed or permanent home. An individual acquires a domicile in a place by living there; even for a brief period of time, with no definite present intention of later removing therefrom. Residence without the requisite intention to remain indefinitely will not suffice to change domicile, nor will intention to change domicile effect such a change until accompanied by actual removal. A domicile, once acquired, is maintained until a new domicile is acquired. (4) Period of residence -- (i) General rule. An individual who becomes a resident of a State pursuant to subparagraph (1) of Qualified State Tax References: Page 129 of 148 this paragraph (b), or who is at the beginning of a taxable year a resident of a State pursuant to such provision, shall be treated as continuing to be a resident of such State through the end of the taxable year, unless, prior thereto, such individual becomes a resident, under the principles of subparagraph (1), of another State or a possession or foreign country. In the event that the individual becomes a resident of such another jurisdiction prior to the end of the taxable year, his residence in such State shall be treated as ending on the day prior to the day on which he becomes a resident of such other jurisdiction pursuant to subparagraph (1). (ii) Examples. The application of this subparagraph may be illustrated by the following examples: Example (1). A, a calendar-year taxpayer, has his principal place of residence in State X from the beginning of 1976 through August 1, 1976, when he gives up permanently such principal place of residence. He spends the remainder of 1976 traveling outside of the United States, but does not become a resident of any other country. A is considered to be a resident of State X for the entire year 1976. Example (2). Assume the same facts as in example (1), except that A ceases his traveling and establishes his principal place of residence in State Y on November 15, 1976. Assume, also, that A maintains that principal place of residence for more than 135 consecutive days. Under these circumstances, for his taxable year 1976, A is considered to be a resident of State X from January 1 through November 14, and a resident of State Y from November 15 through December 31. (5) Special rules. (i) No provision of subchapter E or the regulations thereunder shall be construed to require or authorize the treatment of a Senator, Representative, Delegate, or Resident Commissioner as a resident of a State other than the State which he represents in Congress. (ii) For special rules relating to members of the Armed Forces, see paragraph (h) of s 301.6362-7. (6) Examples. The application of this paragraph may be illustrated by the following examples: Example (1). A, a calendar-year taxpayer, maintains his principal place of residence in State X from December 1, 1976, through April 15, 1977. Assuming that A was not a resident of any other jurisdiction at any time during 1976, A is treated as a resident of State X for the entire year 1976. Such result would obtain even if A was absent from State X on vacation for some portion of December 1976. Moreover, such result would obtain even if it is assumed that A was a domiciliary of State Y from January 1, 1976, through April 15, 1977, because an individual's domicile does not determine his residence so long as residence in one State for the taxable year can be determined from the general rule stated in the first sentence of paragraph (b)(1) of this section. Qualified State Tax References: Page 130 of 148 Example (2). Assume the same facts as in example (1) (including the fact of A's domicile in State Y), except that A maintained his principal place of residence in State Z from September 15, 1975, through January 31, 1976, inclusive. With respect to the year 1976, A is treated as a resident of State Z from January 1 through November 30, and as a resident of State X from December 1 through December 31. A's liability for the qualified taxes of the respective States for 1976 shall be determined pursuant to the provisions in paragraph (e) of this section. (c) Residence of an estate. An estate of an individual is treated as a resident of the last State of which such individual was a resident, as determined under the rules of paragraph (b) of this section, prior to his death. However, the estate of an individual who was not a resident of any State (as determined without regard to the 30-day requirement in paragraph (b)(1) of this section) immediately prior to his death, and who was not a resident of any State at any time during the 3-year period ending on the date of his death, is not treated as a resident of any State. For purposes of determining the decedent's last State of residence, the rules of paragraph (b) shall be applied irrespective of whether subchapter E was in effect at the time the period of 135 consecutive days of residence began, or whether the decedent's last State of residence is a State electing to enter into an agreement pursuant to subchapter E. The determination of the State of residence of an estate pursuant to this paragraph shall not be governed by any determination under State law as to which State is treated as the residence or domicile of the decedent for purposes other than its individual income tax (such as liability for State inheritance tax or jurisdiction of probate proceedings). (d) Residence of a trust -- (1) In general. (i) The State of residence of a trust shall be determined by reference to the circumstances of the individual who, by either an inter-vivos transfer or a testamentary transfer, is deemed to be the "principal contributor" to the trust under the provisions of subdivision (ii) of this subparagraph. (ii) If only one individual has ever contributed assets to the trust, including the assets which were transferred to the trust at its inception, then such individual is the principal contributor to the trust. However, if on any day subsequent to the initial creation of the trust, such trust receives assets having a value greater than the aggregate value of all assets theretofore contributed to it, then the trust shall be deemed (for the limited purpose of determining the State of residence) to have been "created" anew, and the individual who on the day of such creation contributed more (in value) than any other individual contributed on that day shall become the principal contributor to the trust. When a trust is created anew, all references in this paragraph to the creation of the trust shall be construed as referring to the most recent creation. For purposes of this paragraph, the value of any asset shall be its fair market value on the day that it was contributed to the trust; any subsequent appreciation or depreciation in the value Qualified State Tax References: Page 131 of 148 of the asset shall be disregarded. (2) Testamentary trust. A trust with respect to which a deceased individual is the principal contributor by reason of property passing on his death is treated as a resident of the last State of which such individual was a resident, as determined under the rules of paragraph (b) of this section, before his death. However, if such deceased individual was not a resident of any State (as determined without regard to the 30-day requirement in paragraph (b)(1) of this section) immediately prior to his death, and was not a resident of any State at any time during the 3-year period ending on the date of his death, then a testamentary trust of which he is the principal contributor by reason of property passing on his death is not treated as a resident of any State. All property passing on the transferor's death is treated for this purpose as a contribution made to the trust on the date of death, regardless of when the property is actually paid over to the trust. (3) Nontestamentary trust. A trust which is not a trust described in subparagraph (2) of this paragraph (d), is treated as a resident of the State in which the principal contributor to the trust, during the 3-year period ending on the date of the creation of the trust, had his principal place of residence for an aggregate number of days longer than the aggregate number of days he had his principal place of residence in any other State. However, if the principal contributor to such a trust was not a resident of any State at any time during such 3-year period, then the trust is not treated as a resident of any State. (4) Special rules. If the application of the provisions of the foregoing subparagraphs of this paragraph results in a determination of more than one State of residence for a trust, or does not provide a rule by which the residence or nonresidence of the trust can be determined, then the determination of the State of residence of such trust shall be made according to the rules of the applicable subdivision of this subparagraph. (i) If, at the time of creation of the trust, 50 percent or more in value of the trust corpus consists of real property, then the trust shall be treated as a resident of the State in which more of the real property (in value) which was in the trust at such time was located than any other State. (ii) If, at the time of creation of the trust, less than 50 percent in value of the trust corpus consists of real property, then the trust shall be treated as a resident of the State in which, at such time, the trustee, if an individual, had his principal place of residence, or, if a corporation, had its principal place of business. If there were two or more trustees, then the foregoing sentence shall be applied by reference to the principal places of residence, or of business, of the majority of trustees who had authority to make investment and other management decisions for the trust. (iii) If, after application of the provisions of subdivisions (i) and (ii) of this subparagraph, the State of Qualified State Tax References: Page 132 of 148 residence of the trust still cannot be ascertained, then the Commissioner of Internal Revenue shall determine the State of residence of such trust for purposes of qualified taxes. Such determination shall be made by reference to the number of significant contacts each State had with the trust at the time of its creation. Significant contacts shall include the principal place of residence of the principal contributor or contributors to the trust, the principal place of residence or business of the trustee (or trustees), the situs of the assets of which the trust corpus was composed, and the location from which management decisions emanated with respect to the business and investment interests of the trusts. (5) Examples. The application of this paragraph may be illustrated by the following examples: Example (1). A created a trust in 1950 by transferring to it certain stock in a corporation. At the time of such transfer, the stock had a fair market value of $1,000. A at all relevant times had his principal place of residence in State X, and accordingly the trust is treated as a resident of such State for qualified tax purposes. As of January 1, 1977, the stock originally contributed by A, which was at all times the only property in the trust, has a fair market value of $3,000. On such date, B, who has had his principal place of residence in State Y for more than 3 years, contributes to the trust property having a fair market value of $1,200. For purposes of determining the identity of the principal contributor to the trust and the State of residence of the trust, the stock contributed by A in 1950 continues to be valued for such purposes at $1,000. Thus, the trust is treated as being created anew on January 1, 1977, with B as the principal contributor, and with State Y as its State of residence. Example (2). C has his principal place of residence in State X continuously for many years, until August 1, 1978, when he establishes his principal place of residence in State Y. The change of residence is intended to be permanent, and C has no further contact with State X after such change. On January 1, 1980, C creates a nontestamentary trust. During the 3-year period ending on such date C had his principal place of residence in State X for 576 days, and in State Y for 519 days. Therefore, the trust is treated as a resident of State X. (e) Liability for tax on change of residence during taxable year -- (1) In general. If, under the principles contained in paragraph (b) or (d) of this section, an individual or trust becomes a resident, or ceases to be a resident, of a State, and is also a resident of another jurisdiction outside of such State during the same taxable year, the liability of such individual or trust for the resident tax of such State shall be determined by multiplying the amount which would be his or its liability for tax (computed after allowing the nonrefundable credits (i.e., credits not corresponding to the credits referred to in section 6401(b) available against the tax)) if he or it had been a resident of such State for the entire taxable year by a fraction, the numerator of which is the number of days he or it was a Qualified State Tax References: Page 133 of 148 resident of such State during the taxable year, and the denominator of which is the total number of days in the taxable year. The preceding sentence shall not apply by reason of the fact that an individual is born or dies during the taxable year, or by reason of the fact that a trust comes into existence or ceases to exist during the taxable year. (2) Residence determined by domicile. When an individual is treated as a resident of a State by reason of being domiciled in such State, pursuant to paragraph (b)(1)(ii) of this section, then the numerator of the fraction provided in subparagraph (1) of this paragraph (e), shall be the number of days the individual was domiciled in the State during the taxable year. (3) Example. The application of this paragraph may be illustrated by the following example: Example. A, a calendar-year taxpayer, is a resident of State X continuously for many years prior to March 15, 1977. On such date, A retires and establishes a new principal place of residence in State Y. A earns $6,000 in 1977 prior to March 15, but receives no taxable income for the remainder of such year. If A had been a resident of State X for the entire taxable year 1977, his liability with respect to the qualified tax of such State (computed after allowing the nonrefundable credits available against the tax) would be $600. If he had been a resident of State Y for the entire taxable year 1977, his liability with respect to the qualified tax on that State (computed similarly) would be $400. Pursuant to the provisions in paragraph (e) of this section, A's liabilities for State qualified taxes for 1977 are as follows: (f) Current collection of tax. The State tax laws shall contain provisions for methods of current collection with respect to individuals which correspond to the provisions of the Internal Revenue Code of 1954 with respect to such current collection, including chapter 24 (relating to the collection of income tax at source on wages) and sections 6015, 6073, 6153, and other provisions of the Code relating to declarations (and amendments thereto) and payments of estimated income tax. Except as otherwise provided by Federal statute (see paragraphs (h), (i), and (j) of s 301.6362-7), in applying such provisions of the State tax laws: (1) In the case of a resident tax, an individual shall be subject to the current collection provisions if either -- (i) He is a resident of the State within the meaning of paragraph (b) of this section, or (ii) He has his principal place of residence (as defined in paragraph (b)(2) of this section) within the State, And it is reasonable to expect him to have it within the State for 30 days or more during the taxable year. (2) In the case of a nonresident tax, an individual shall be Qualified State Tax References: Page 134 of 148 subject to the current collection provisions if he does not meet either description relating to an individual in subparagraph (1) of this paragraph (f), if he is not exempt from liability for the tax by reason for a reciprocal agreement between the State of which he is a resident and the State imposing the tax, and if it is reasonable to expect him to receive wage or other business income derived from sources within the State imposing the tax (as defined in paragraph (d) of s 301.6362-5) for services performed on 30 days or more of the taxable year. For additional rules relating to withholding see paragraph (d) of s 301.6361-1. [T.D. 7577, 43 F.R. 59369, Dec. 20, 1978] 26 CFR s 301.6362-6, Requirements relating to residence. ------------ Excerpt from pages 160523-160530 CODE OF FEDERAL REGULATIONS TITLE 26 -- INTERNAL REVENUE CHAPTER I -- INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY SUBCHAPTER F -- PROCEDURE AND ADMINISTRATION PART 301 -- PROCEDURE AND ADMINISTRATION COLLECTION SEIZURE OF PROPERTY FOR COLLECTION OF TAXES Current through January 1, 1997; 61 F.R. 69366 s 301.6362-7 Additional requirements. A State tax meets the additional requirements of section 6362(f) and this section only if: (a) State agreement must be in effect for period concerned. A State agreement, as defined in paragraph (a) of s 301.6361-4, is in effect with respect to such tax for the taxable period in question. (b) State laws must contain certain provisions. Under the laws of such State, the provisions of subchapter E and the regulations thereunder, as in effect from time to time, are applicable for the entire period for which the State agreement is in effect. Any change made by the State in such tax (other than an adjustment in the State law which is made solely in order to comply with a change in the Federal Law or regulations) shall not apply to taxable years beginning in any calendar year for which the State agreement is in effect unless the change is enacted before November 1 of such year. Qualified State Tax References: Page 135 of 148 (c) State individual income tax laws can be only of certain kinds. Such State does not impose any tax on the income of individuals other than (1) a qualified resident tax, and (2) either or both a qualified nonresident tax and a separate tax on income which is not wage and other business income as defined in paragraph (c) of s 301.6362-5 and which is received or accrued by individuals who are domiciled in the State, but who are not residents of the State (as defined in paragraph (b) of s 301.6362-6). For purposes of this paragraph, a tax imposed on the amount taxed under section 56 (as permitted under s 301.6362- 2(b)(2)) shall be treated as an adjustment to and a part of the qualified resident tax. Also, tax laws which were in effect prior to the effective date of a State agreement and which are not repealed, but which are made inapplicable for the period during which the State agreement is in effect, shall be disregarded. (d) Taxable years must coincide. The taxable years of all individuals, estates, and trusts under such tax are required to coincide with their taxable years used for purposes of the taxes imposed by chapter 1. Accordingly, when subchapter E begins to apply to a State, a taxpayer whose taxable year for purposes of the Federal income tax is different from his taxable year for purposes of the State income tax which precedes the qualified tax may have one short taxable year for purposes of such State income tax, so that thereafter his taxable years for purposes of the qualified tax will coincide with the Federal taxable year. (e) Married individuals. Individuals who are married within the meaning of section 143 of the Code are prohibited from filing (1) a joint return for purposes of such State tax if they file separate Federal income tax returns, or (2) separate returns for purposes for such State tax if they file a joint Federal income tax return. (f) Penalties; no double jeopardy. Under the laws of such State: (1) Civil and criminal sanctions identical to those provided by subtitle F, and by title 18 of the United States Code (relating to crimes and criminal procedures), with respect to the taxes imposed on the income of individuals by chapter 1 and on the wages of individuals by chapter 24, apply to individuals and their employers who are subject to such State tax (and the collection and administration thereof, including the corresponding withholding tax imposed to implement the current collection of such State tax) as if such tax were imposed by chapter 1 or chapter 24, in the case of the withholding tax), except to the extent that the application of such sanctions is modified by regulations issued under subchapter E; and (2) No other sanctions or penalties apply with respect to any act or omission to act in respect of such State tax. See also paragraph (e) of s 301.6361-1 with respect to criminal penalties. Qualified State Tax References: Page 136 of 148 (g) Partnerships, trusts, subchapter S corporations, and other conduit entities. Under the laws of such State, the State tax treatment of -- (1) Partnerships and partners, (2) Trusts and their beneficiaries, (3) Estate and their beneficiaries, (4) Electing small business corporations (within the meaning of section 1371(a)) and their shareholders, and (5) Any other entity and the individuals having beneficial interests therein (such as a cooperative corporation and its shareholders), to the extent that such entity is treated as a conduit for purposes of the taxes imposed by chapter 1, corresponds to the tax treatment provided therefor with respect to the taxes imposed by chapter 1. For example, a subchapter S corporation shall not be subject to the State's corporate income tax on amounts which are includible in shareholders' incomes which are subject to that State's individual income tax, except to the extent that the subchapter S corporation is subject to tax under Federal law. Similarly, a partnership shall not be subject to the State's unincorporated business income tax on amounts which are includible in partners' incomes which are subject to that State's individual income tax. However, the laws of the State which set forth the provisions of such State individual income tax shall authorize the Commissioner of Internal Revenue to require that the conduit entities described in this paragraph (or some of them) supply information to the Federal Government with respect to the source of income, the State of residence, or the amount of income of a particular type, of an individual, estate, or trust holding a beneficial interest in such conduit entity. (h) Members of armed forces. The relief provided to any member of the Armed Forces by section 514 of the Soldiers' and Sailors' Civil Relief Act (50 U.S.C. App. section 574) is in no way diminished. Accordingly, for purposes of such State tax, an individual shall not be considered to have become a resident of a State solely because of his absence from his original State of residence under military order. Moreover, compensation for military service shall not be considered as income derived from a source within a State of which the individual earning such compensation is not a resident, within the meaning of paragraph (d) of s 301.6362-5. The preceding sentence shall not apply to nonmilitary compensation. Thus, for example, if an individual who is serving in State X as a member of the Armed Forces, and who is regarded as a resident of State Y under the Soldiers' and Sailors' Civil Relief Act, earns nonmilitary income in State X from a part-time job, such nonmilitary income may be subject to a qualified nonresident tax imposed by State X. (i) Withholding on compensation of employees of railroads, motor carriers, airlines, and water carriers. There is no contravention of the provisions of section 26, 226A, or 324 of Qualified State Tax References: Page 137 of 148 the Interstate Commerce Act, or of section 1112 of the Federal Aviation Act of 1958, with respect to the withholding of compensation to which such sections apply for purposes of the nonresident tax. (j) Income derived from interstate commerce. There is no contravention of the provisions of the Act of September 14, 1959 (73 Stat. 555), with respect to the taxation of income derived from interstate commerce to which such statute applies. [T.D. 7577, 43 F.R. 59372, Dec. 20, 1978] 26 CFR s 301.6362-7, Additional requirements. ------------ Excerpt from pages 160531-160533 CODE OF FEDERAL REGULATIONS TITLE 26 -- INTERNAL REVENUE CHAPTER I -- INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY SUBCHAPTER F -- PROCEDURE AND ADMINISTRATION PART 301 -- PROCEDURE AND ADMINISTRATION COLLECTION SEIZURE OF PROPERTY FOR COLLECTION OF TAXES Current through January 1, 1997; 61 F.R. 69366 s 301.6363-1 State agreements. (a) Notice of election. If a State elects to enter into a State agreement it shall file notice of such election with the Secretary or his delegate. The notice of election shall include the following: (1) Statement by the Governor. A written statement by the Governor of the electing State: (i) Requesting that the Secretary enter into a State agreement, and (ii) Binding the Governor and his successors in office to notify the Secretary or his delegate immediately of the enactment, between the time of the filing of the notice of election and the time of the execution of the State agreement, of any law of that State which meets the description given in any of the subdivisions of subparagraph (2) of this paragraph (a), whether or not such law is intended to be administered by the United States pursuant to subchapter E. (2) Copy of State laws. Certified copies of all laws of that State described in any of the following subdivisions of this Qualified State Tax References: Page 138 of 148 subparagraph, and a specification of laws described in subdivision (i) of this subparagraph as "subchapter E laws", of laws described in subdivision (ii) as "other tax laws", of laws described in subdivision (iii) as "non-tax laws", and of laws described in subdivision (iv) as "interstate cooperation laws": (i) All of the State individual income tax laws (including laws relating to the collection or administration of such taxes or to the prosecution of alleged civil or criminal violations with respect to such taxes) which the State would expect the United States to administer pursuant to subchapter E if the State agreement is executed as requested. In order to have a valid notice, the State must have a tax which would meet the requirements for qualification specified in section 6362 and the regulations thereunder if a State agreement were in effect with respect thereto, with no conditions attached to the effectiveness of such tax other than the execution of a State agreement. Such tax must be effective no later than the January 1 specified in the State's notice of election as the date as of which subchapter E is desired to become applicable to the electing State, except that such effective date shall be deferred to the date provided in the State agreement for the beginning of applicability of subchapter E to the State, if the latter date is different from the date specified in the notice of election. (ii) All of the State income tax laws applicable to individuals (including laws relating to the collection or administration of such taxes or to the prosecution of alleged civil or criminal violations with respect to such taxes) which the State would not expect the United States to administer but which may be in effect simultaneously (for any period of time) with the State agreement. (iii) All of the State laws other than individual income tax laws which provide for the making of any payments by the State based on one or more criteria which the State may desire to verify by reference to information contained in returns of qualified taxes. (iv) All of the State laws which may be in effect simultaneously (for any period of time) with the State agreement and which provide for cooperation or reciprocal agreement between the electing State and another State with respect to income taxes applicable to individuals. (3) Approval by legislature or authorization by constitutional amendment. A certified copy of an Act or Resolution of the legislature of the electing State in which the legislature affirmatively expresses its approval of the State's entry into a State agreement, or a certified copy of an amendment to the constitution of such State by which the voters of the State affirmatively authorize such entry. (4) Opinion by State Attorney General or judgment of highest court. A written statement by the State Attorney General to the effect that, in his opinion, no provision of the State's Constitution would be violated by the State law's incorporation Qualified State Tax References: Page 139 of 148 by reference of the Federal individual income tax laws and regulations, as amended from time to time, by the Federal prosecution and trial of individuals who are alleged to have committed crimes with respect to the State's qualified tax (when it goes into effect as such), or by any other provision relating to such tax, considered as of the time it is being collected and administered by the Federal Government pursuant to subchapter E. However, if such a statement is not included in the notice of election, a judgment of the highest court of the State to the same effect may be submitted in its place. (5) Effective date. A written specification of the January as of which subchapter E is desired to become applicable to the electing State. (b) Rules relating to time for filing notice of election. An electing State must file its notice of election more than 6 months prior to the January 1 as of which the notice specifies that the provisions of subchapter E are desired to become applicable to such State. Thus, for example, if the date specified in the notice is January 1, 1979, the notice must be filed no later than June 30, 1978. However, because under the provisions of section 204(b) of the Federal-State Tax Collection Act of 1972 (86 Stat. 945), as amended by section 2116(a) of the Tax Reform Act of 1976 (90 Stat. 1910), the provisions of subchapter E will initially take effect on the first January 1 which is more than 1 year after the first date on which at least one State has filed a notice of its election (see s 301.6361-5), the notice of an election which causes subchapter E to initially take effect must be filed with the Secretary or his delegate more than 1 year prior to the January 1 as of which such notice specifies that the provisions of subchapter E are desired to become applicable to such State. Thus, for example, if such an initially electing State desires to elect subchapter E as of January 1, 1979, its notice must be filed no later than December 31, 1977. For purposes of this section, if the notice of election is sent by either registered or certified mail to the Secretary of the Treasury, Washington, D.C. 20220, then it shall be deemed to be filed on the date of mailing; otherwise, the notice of election shall be deemed to be filed when it is received by the Secretary or his delegate. (c) Procedures relating to defects in notice or tax laws. If a State has filed a notice of election, then the Secretary shall, within 90 days after the notice is filed, notify the Governor of such State in writing of any defect in the notice of election which prevents it from being valid, and of any defect in the State's tax laws which causes the tax submitted to fail to meet the requirements for qualification specified in section 6362 and the regulations thereunder, other than the fact that no State agreement is in effect with respect thereto. Any such defect of which the Secretary does not notify the Governor within such 90- day period is waived. The Secretary or his delegate may, in his discretion, permit any of such defects of which the Governor is timely notified to be cured retroactively to the date of the filing of the notice of election, by amendment of the notice or the State law. Judicial review of the Secretary's determination Qualified State Tax References: Page 140 of 148 that the notice of election or the tax laws, or both, contain defects, may be obtained as set forth in section 6363(d) and s 301.6363-4. (d) Execution and contents of State agreement. If the Secretary does not timely notify the Governor of a defect in the notice of election or in the State's tax laws, as provided in paragraph (c) of this section, or if, as provided in such paragraph, all such defects have been cured retroactively, then the Secretary shall enter into a State agreement. The agreement shall include the following elements: (1) Effective date. The agreement shall specify the January 1 as of which subchapter E will commence to be applicable to the State. Such date shall be the same as that specified in the notice of election pursuant to paragraph (a)(5) of this section, unless the parties agree to a different January 1, except that in no event shall a State agreement executed after November 1 specify the next January 1. (2) Obligation of Governor to notify the United States of changes in pertinent State laws. The agreement shall require the Governor of the State, and his successors in office, to notify the Secretary or his delegate within 30 days of the enactment of any law of the State, after the execution of the agreement, of a type described in paragraph (a)(2) of this section. (3) Obligation of Governor to furnish to the United States information needed to administer State tax laws. The agreement shall require the Governor and his successors to furnish to the Secretary or his delegate any information needed by the Federal Government to administer the State tax laws. Such information shall include, for example, a list (which shall be maintained on a current basis) of those obligations of the State or its political subdivisions described in section 103(a)(1) from which the interest is not subject to the qualified taxes of the State. (4) Identification of State official to act as liaison with Federal Government. The agreement shall include a designation by the Governor of the State official or officials with whom the Secretary or his delegate should coordinate in connection with any questions or problems which may arise during the period for which the State agreement is effective, including those which may result from changes or contemplated changes in pertinent State laws. (5) Identification of State official to receive transferred funds. The agreement shall include a designation by the Governor of the State official who shall initially receive the funds on behalf of the State when they are transferred pursuant to section 6361(c) and s 301.6361-3. (6) Other obligations. If the Secretary and the Governor both so agree, the agreement shall provide for additional obligations. (e) State agreement superseding certain other agreements. Qualified State Tax References: Page 141 of 148 For the period of its effectiveness, a State agreement shall supersede an otherwise effective agreement entered into by the State and the Secretary for the withholding of State income taxes from the compensation of Federal employees pursuant to 5 U.S.C. 5517 (or pursuant to 5 U.S.C. 5516, in the case of the District of Columbia). [T.D. 7577, 43 F.R. 59373, Dec. 20, 1978] 26 CFR s 301.6363-1, State agreements. ------------ Excerpt from pages 160534-160537 CODE OF FEDERAL REGULATIONS TITLE 26 -- INTERNAL REVENUE CHAPTER I -- INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY SUBCHAPTER F -- PROCEDURE AND ADMINISTRATION PART 301 -- PROCEDURE AND ADMINISTRATION COLLECTION SEIZURE OF PROPERTY FOR COLLECTION OF TAXES Current through January 1, 1997; 61 F.R. 69366 s 301.6363-2 Withdrawal from State agreements. (a) By notification. If a State which has entered into a State agreement desires to withdraw from the agreement, its Governor shall file a notice of withdrawal with the Secretary or his delegate. A notice of withdrawal shall include the following documents: (1) Request by the Governor. A request by the Governor of the State that the State agreement cease to be effective with respect to taxable years beginning on or after a specified January 1, except as provided in paragraph (b)(2) of s 301.6365-2 with respect to withholding in the case of fiscal year taxpayers. (2) Legislative approval of withdrawal. A certified copy of an act or Resolution of the legislature of the State in which the legislature affirmatively expresses its approval of the State's withdrawal from the State agreement. (3) Identification of State official. A written identification of the State official or officials with whom the Secretary or his delegate should coordinate in connection with the State's withdrawal from the State agreement. (b) By change in State law. If any law of a State which has entered into a State agreement is enacted pertaining to individual income taxes (including the collection or Qualified State Tax References: Page 142 of 148 administration of such taxes, and the prosecution of alleged civil or criminal violations with respect to such taxes), and if the Secretary or his delegate determines that as a result of such law the State no longer has a qualified tax, then such change in the State law shall be treated as a notification of withdrawal from the agreement. The Secretary shall notify the Governor in writing when a change is to be so treated. Such notification shall have the same effect as if, on the effective date of the disqualifying change in the law, the Governor had filed with the Secretary or his delegate a valid and sufficient notice of withdrawal requesting that the State agreement cease to be effective with respect to taxable years beginning on or after the first January 1 which is more than 6 months thereafter, subject to the exception with respect to withholding in the case of fiscal-year taxpayers. However, the cessation of effectiveness may be deferred to a subsequent January 1 if the Governor so requests and if the Secretary or his delegate in his discretion determines that the date of cessation provided in the preceding sentence would subject the State or its taxpayers to undue hardship. In addition, the Governor may request the Secretary or his delegate to permit the State's early withdrawal from the agreement, pursuant to paragraph (c)(2) of this section. Until the date of cessation of effectiveness of the State agreement, the change in State law which was treated as a notification of withdrawal, and any other such subsequent change that would be similarly treated, shall not be given effect for purposes of the Federal collection and administration of the State taxes. Similarly, such changes shall not be given effect for such purposes during the period of litigation if the State seeks judicial review of the action of the Secretary or his delegate pursuant to section 6363(d) or s 301.6363-4, even if such changes are ultimately found by the court not to disqualify the State's qualified tax. However, a change in State law which would be treated as a notice of withdrawal in the absence of this sentence shall not be so treated if, prior to the last November 1 preceding the January 1 on which the cessation of effectiveness of the State agreement is to occur, either such change in State law is retroactively repealed, or the State law is retroactively modified and the Secretary or his delegate determines that with such modification the State has a qualified tax. (c) Rules relating to time of withdrawal -- (1) General rule. Except as provided in subparagraph (2) of this paragraph (c), a notice of withdrawal shall not be valid unless the January 1 specified therein is not earlier than the first January 1 which is more than 6 months subsequent to the date on which the notice is received by the Secretary or his delegate. Thus, for example, if the notice specifies January 1, 1980, for withdrawal, the notice must be received no later than June 30, 1979. (2) Early withdrawal. The Secretary or his delegate may, in his discretion and upon written request by a Governor of a State who has filed a notice of withdrawal, waive the 6-months requirement of section 6363(b)(1) and subparagraph (1) of this paragraph (c), if the Secretary determines that: (i) The State will suffer a hardship if required to meet Qualified State Tax References: Page 143 of 148 such requirement, and (ii) The early withdrawal requested by the Governor would be practicable from the standpoint of orderly collection of the qualified tax and administration of the State law by the Federal Government. [T.D. 7577, 43 F.R. 59374, Dec. 20, 1978] 26 CFR s 301.6363-2, Withdrawal from State agreements. ------------ Excerpt from pages 160538-160539 CODE OF FEDERAL REGULATIONS TITLE 26 -- INTERNAL REVENUE CHAPTER I -- INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY SUBCHAPTER F -- PROCEDURE AND ADMINISTRATION PART 301 -- PROCEDURE AND ADMINISTRATION COLLECTION SEIZURE OF PROPERTY FOR COLLECTION OF TAXES Current through January 1, 1997; 61 F.R. 69366 s 301.6363-3 Transition years. The State may by law provide for the transition to or from a qualified tax to the extent necessary to prevent double taxation or other unintended hardships, or to prevent unintended benefits, under State law. Generally, such provisions shall be administered by the State; but, if requested to do so by the Governor of the State, the Secretary or his delegate may in his discretion, agree to administer such provisions either solely or jointly with the State. [T.D. 7577, 43 F.R. 59375, Dec. 20, 1978] 26 CFR s 301.6363-3, Transition years. ------------ Excerpt from page 160540 CODE OF FEDERAL REGULATIONS TITLE 26 -- INTERNAL REVENUE CHAPTER I -- INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY SUBCHAPTER F -- PROCEDURE AND ADMINISTRATION PART 301 -- PROCEDURE AND ADMINISTRATION Qualified State Tax References: Page 144 of 148 COLLECTION SEIZURE OF PROPERTY FOR COLLECTION OF TAXES Current through January 1, 1997; 61 F.R. 69366 s 301.6363-4 Judicial review. (a) General rule. If the Secretary or his delegate determines pursuant to paragraph (c) of s 301.6363-1 that a State did not file a valid notice of election or does not have a tax which would meet the requirements for qualification specified in section 6362 and the regulations thereunder if a State agreement were in effect with respect thereto, or if he determines pursuant to paragraph (b) of s 301.6363-2 that a participating State has enacted a law as a result of which the State no longer has a qualified tax, such State may, within 60 days after its Governor has received notification of such determination, file a petition for the review of such determination with either the United States Court of Appeals for the circuit in which the State is located or the United States Court of Appeals for the District of Columbia. If a State files such a petition, the clerk of the court shall forthwith transmit a copy of the petition to the Secretary or his delegate, who in turn shall thereupon file in the court the record of proceedings on which the determination adverse to the State was based, as provided in section 2112 of title 28, United States Code. (b) Court of Appeals' jurisdiction. The Court of Appeals may affirm or set aside, in whole or in part, the action of the Secretary or his delegate; and (subject to the rules delaying the effectiveness of the change in State law provided in paragraph (b) of s 301.6363-2) the court may issue such other orders as may be appropriate with respect to taxable years which include any part of the period of litigation. (c) Review of Court of Appeals' judgment. The judgment of the Court of Appeals shall be subject to review by the Supreme Court of the United States upon certiorari or certification sought by either party as provided in section 1254 of title 28, United States Code. (d) Effect of final judgment. If a final judgment, rendered with respect to litigation involving a State's petition to review a determination of the Secretary or his delegate to the effect that the State's individual income tax laws included in its notice of election would not meet the requirements for qualification specified in section 6362 and the regulations thereunder if a State agreement were in effect with respect thereto, includes a determination that the State's tax would in fact meet such requirements, then the provisions of subchapter E shall apply to the State with respect to taxable years beginning on or after the first January 1 which is more than 6 months after the date of such final judgment. If a final judgment, rendered with respect to litigation involving a State's petition to review a determination of the Secretary or his delegate to the effect Qualified State Tax References: Page 145 of 148 that the State's previously-qualified tax ceases to qualify because of a change in the State's law, includes a determination that the State's tax does in fact cease to qualify, then the provisions of subchapter E (other than section 6363) shall cease to apply to the State with respect to taxable years beginning on or after the first January 1 which is more than 6 months after the date of such final judgment. See paragraph (b) of s 301.6365-2 for special rules with respect to withholding in the case of fiscal-year taxpayers. (e) Expeditious treatment of judicial proceedings. Under section 6363(d)(4), any judicial proceedings to which a State and the United States are parties, and which are brought pursuant to section 6363, are entitled to receive a preference, and to be heard and determined as expeditiously as possible, upon request of the Secretary or the State. [T.D. 7577, 43 F.R. 59375, Dec. 20, 1978] 26 CFR s 301.6363-4, Judicial review. ------------ Excerpt from pages 160541-160542 CODE OF FEDERAL REGULATIONS TITLE 26 -- INTERNAL REVENUE CHAPTER I -- INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY SUBCHAPTER F -- PROCEDURE AND ADMINISTRATION PART 301 -- PROCEDURE AND ADMINISTRATION COLLECTION SEIZURE OF PROPERTY FOR COLLECTION OF TAXES Current through January 1, 1997; 61 F.R. 69366 s 301.6365-1 Definitions. (a) State. For purposes of subchapter E and the regulations thereunder, the term "State" shall include the District of Columbia, but shall not include the Commonwealth of Puerto Rico or any possession of the United States. (b) Governor. For purposes of subchapter E and the regulations thereunder, the term "Governor" shall include the Mayor of the District of Columbia. [T.D. 7577, 43 F.R. 59375, Dec. 20, 1978] 26 CFR s 301.6365-1, Definitions. ------------ Excerpt from page 160543 Qualified State Tax References: Page 146 of 148 CODE OF FEDERAL REGULATIONS TITLE 26 -- INTERNAL REVENUE CHAPTER I -- INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY SUBCHAPTER F -- PROCEDURE AND ADMINISTRATION PART 301 -- PROCEDURE AND ADMINISTRATION COLLECTION SEIZURE OF PROPERTY FOR COLLECTION OF TAXES Current through January 1, 1997; 61 F.R. 69366 s 301.6365-2 Commencement and cessation of applicability of subchapter E to individual taxpayers. (a) General rule. Except for purposes of chapter 24 (relating to the collection of income tax at source on wages), whenever subchapter E begins or ceases to apply to any State (i.e., a State agreement begins or ceases to be effective) as of any January 1, such commencement or cessation of applicability shall apply to taxable years of individuals beginning on or after such date. For example, if subchapter E begins to apply to a particular State on January 1, 1980, it would become applicable for calendar year 1980 for calendar-year taxpayers in that State; but if a taxpayer in the State is using a fiscal year running from July 1 to June 30, the subchapter would begin to apply (except for purposes of chapter 24) to that taxpayer on July 1, 1980, for his taxable year ending June 30, 1981. Similarly, if the subchapter ceases to apply to such State on January 1, 1982, it would cease to apply to calendar-year taxpayers after the end of calendar year 1981; but it would cease to apply (except for purposes of chapter 24) to fiscal-year taxpayers at the end of their fiscal years which are in progress on January 1, 1982. The cessation of applicability of subchapter E to a State does not affect rights, duties, and liabilities with respect to any taxable year for which subchapter E does apply with respect to any taxpayer (or his employer). (b) Special rules pertaining to withholding -- (1) Subchapter E beginning to apply. The Federal withholding system provided in chapter 24 shall go into effect for State individual income tax purposes with respect to wages paid on or after the January 1 as of which subchapter E begins to apply to a State. If an employee is subject to a qualified tax imposed by the State, such withholding system shall apply to his wages paid on or after that January 1, without regard to whether he is a calendar-year or fiscal-year taxpayer. See s 301.6363-3 with respect to transition-year rules. (2) Subchapter E ceasing to apply. The Federal withholding system provided in chapter 24 shall cease to be effective for State tax purposes with respect to wages paid on or after the Qualified State Tax References: Page 147 of 148 January 1 as of which subchapter E ceases to apply to the State, although fiscal-year taxpayers of that State continue to be subject to the other provisions of subchapter E for the remainder of their fiscal years then in progress. See s 301.6363-3 with respect to transition-year rules. [T.D. 7577, 43 F.R. 59375, Dec. 20, 1978] 26 CFR s 301.6365-2, Commencement and cessation of applicability of subchapter E to individual taxpayers. ------------ Excerpt from pages 160544-160545 Qualified State Tax References: Page 148 of 148 # # #
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