TITLE 5 > PART III > Subpart A > CHAPTER 21 > § 2105
§ 2105. Employee

(a) For the purpose of this title, “employee”, except as otherwise provided by this section or when specifically modified, means an officer and an individual who is—

(1) appointed in the civil service by one of the following acting in an official capacity—

(A) the President;
(B) a Member or Members of Congress, or the Congress;
(C) a member of a uniformed service;
(D) an individual who is an employee under this section;
(E) the head of a Government controlled corporation; or
(F) an adjutant general designated by the Secretary concerned under section 709 (c) of title 32;

(2) engaged in the performance of a Federal function under authority of law or an Executive act; and
(3) subject to the supervision of an individual named by paragraph (1) of this subsection while engaged in the performance of the duties of his position.

(b) An individual who is employed at the United States Naval Academy in the midshipmen’s laundry, the midshipmen’s tailor shop, the midshipmen’s cobbler and barber shops, and the midshipmen’s store, except an individual employed by the Academy dairy (if any), and whose employment in such a position began before October 1, 1996, and has been uninterrupted in such a position since that date is deemed an employee.

(c) An employee paid from nonappropriated funds of the Army and Air Force Exchange Service, Army and Air Force Motion Picture Service, Navy Ship’s Stores Ashore, Navy exchanges, Marine Corps exchanges, Coast Guard exchanges, and other instrumentalities of the United States under the jurisdiction of the armed forces conducted for the comfort, pleasure, contentment, and mental and physical improvement of personnel of the armed forces is deemed not an employee for the purpose of—

(1) laws administered by the Office of Personnel Management, except—

(A) section 7204;
(B) as otherwise specifically provided in this title;
(C) the Fair Labor Standards Act of 1938;
(D) for the purpose of entering into an interchange agreement to provide for the noncompetitive movement of employees between such instrumentalities and the competitive service; or
(E) subchapter V of chapter 63, which shall be applied so as to construe references to benefit programs to refer to applicable programs for employees paid from nonappropriated funds; or

(2) subchapter I of chapter 81, chapter 84 (except to the extent specifically provided therein), and section 7902 of this title.
This subsection does not affect the status of these nonappropriated fund activities as Federal instrumentalities.

(d) A Reserve of the armed forces who is not on active duty or who is on active duty for training is deemed not an employee or an individual holding an office of trust or profit or discharging an official function under or in connection with the United States because of his appointment, oath, or status, or any duties or functions performed or pay or allowances received in that capacity.

(e) Except as otherwise provided by law, an employee of the United States Postal Service or of the Postal Rate Commission is deemed not an employee for purposes of this title.

(f) For purposes of sections 1212, 1213, 1214, 1215, 1216, 1221, 1222, 2302, and 7701, employees appointed under chapter 73 or 74 of title 38 shall be employees.

"...the term [employee] includes officers and employees, whether elected or appointed, of the United States, a [federal] State, Territory, Puerto Rico or any political subdivision, thereof, or the District of Columbia, or any agency or instrumentality of any one or more of the foregoing.  The term 'employee' also includes an officer of a corporation."  

26 U.S.C. Sec. 3401(c ) Employee

For purposes of this chapter, the term ''employee'' includes [is limited to] an officer, employee, or elected official of the United States, a State, or any political subdivision thereof, or the District of Columbia, or any agency or instrumentality of any one or more of the foregoing. The term ''employee'' also includes an officer of a corporation.

26 CFR 31.3401(c )-1  

"Generally, physicians, lawyers, dentists, veterinarians, contractors, subcontractors, public stenographers, auctioneers, and others who follow an independent trade, business, or profession, in which they offer their services to the public, are not employees."

8 Federal Register, Tuesday, September 7, 1943, §404.104, pg. 12267

Employee:  “The term employee specifically includes officers and employees whether elected or appointed, of the United States, a state, territory, or political subdivision thereof or the District of Columbia or any agency or instrumentality of any one or more of the foregoing.”

Black's Law Dictionary, Sixth Edition, page 517:

Elected.  The word "elected," in its ordinary signification, carries with it the idea of a vote, generally popular, sometimes more restricted, and cannot be held the synonym of any other mode of filling a position.

Black's Law Dictionary, Sixth Edition, page 99:

Appointment.  The designation of a person, by the person or persons having authority therefor, to discharge the duties of some office or trust.  In re Nicholson's Estate, 104 Colo. 561, 93 P.2d 880, 884.  

...

Office or public function.  The selection or designation of a person, by the person or persons having authority therefor, to fill an office or public function and discharge the duties of the same.  The term "appointment" is to be distinguished from "election."  "Election" to office usually refers to vote of people, whereas "appointment" relates to designation by some individual or group.  Board of Education of Boyle County v. McChesney, 235 Ky. 692, 32 S.W.2d 26, 27.

Black's Law Dictionary, Sixth Edition, page 1082:

Office.  A right, and correspondent duty, to exercise a public trust.  A public charge or employment.  An employment on behalf of the government in any station or public trust, not merely transient, occasional, or incidental.  The most frequent occasions to use the word arise with reference to a duty and power conferred on an individual by the government; and, when this is the connection, "public office" is a usual and more discriminating expression.  But a power and duty may exist without immediate grant from government, and may be properly called an "office;" as the office of executor.  Here the individual acts towards legatees in performance of a duty, and in exercise of a power not derived from their consent, but devolved on him by an authority which quoad hoc is superior....

5 U.S.C. §8501(1)(D): "Federal service"

TITLE 5 > PART III > Subpart G > CHAPTER 85 > SUBCHAPTER I > § 8501
§ 8501. Definitions

For the purpose of this subchapter—

(1) “Federal service” means service performed after 1952 in the employ of the United States or an instrumentality of the United States which is wholly or partially owned by the United States, but does not include service (except service to which subchapter II of this chapter applies) performed—

(D) outside the United States, the Commonwealth of Puerto Rico, and the Virgin Islands by an individual who is not a citizen of the United States;

(3) “Federal employee” means an individual who has performed Federal service;

26 CFR §1.1402(c )-3: Employee

Title 26: Internal Revenue
PART 1—INCOME TAXES
TAX ON SELF-EMPLOYMENT INCOME
§ 1.1402(c)-3   Employees.

(a) General rule. Generally, the performance of service by an individual as an employee, as defined in the Federal Insurance Contributions Act (Chapter 21 of the Internal Revenue Code) does not constitute a trade or business within the meaning of section 1402(c) and §1.1402(c)–1. However, in six cases set forth in paragraphs (b) to (g), inclusive, of this section, the performance of service by an individual is considered to constitute a trade or business within the meaning of section 1402(c) and §1.1402(c)–1. (As to when an individual is an employee, see section 3121 (d) and (o) and section 3506 and the regulations under those sections in part 31 of this chapter (Employment Tax Regulations).)

Mcnally v. United States, 483 U.S. 350 (1987)

When a person is being paid a salary for his loyal services, any breach of that loyalty would appear to carry with it some loss of money to the employer - who is not getting what he paid for. Additionally, "[i]f an agent receives anything as a result of his violation of a duty of loyalty to the principal, he is subject to a liability to deliver it, its value, or its proceeds, to the principal." Restatement (Second) of Agency 403 (1958). This duty may fulfill the Court's "money or property" requirement in most kickback schemes.

[Mcnally v. United States, 483 U.S. 350 (1987)]

Sims v. U.S., 359 U.S. 108, 79 S.Ct. 641 (1959)

Although not disputing these principles, petitioner advances two arguments in support of his claim that the statutes do not authorize a levy on the accrued salaries of employees of a State. First, he contends that a State is not a ‘person’ within the meaning of s 6332, and, second, he argues that Congress, by specifically authorizing in s 6331 a levy ‘upon the accrued salary or wages of any officer, employee, or elected official, of the United States, the District of Columbia, or any agency or instrumentality’ thereof, but not similarly specifically authorizing levy upon the accrued salaries or wages of *112 employees of a State, evinced its intention to exclude the latter from such levies.

Though the definition of ‘person’ in s 6332 does not mention States or any sovereign or political entity or their officers among those it ‘includes' (Note 3), it is equally clear that it does **645 not exclude them. This is made certain by the provisions of s 7701(b) of the 1954 Internal Revenue Code that ‘The terms ‘includes' and ‘including’ when used in a definition contained in this title shall not be deemed to exclude other things otherwise within the meaning of the term defined.' 26 U.S.C. (Supp. V) s 7701(b), 26 U.S.C.A. s 7701(b). Whether the term ‘person’ when used in a federal statute includes a State cannot be abstractly declared, but depends upon its legislative environment, State of Ohio v. Helvering, 292 U.S. 360, 370, 54 S.Ct. 725, 727, 78 L.Ed. 1307; State of Georgia v. Evans, 316 U.S. 159, 161, 62 S.Ct. 972, 973, 86 L.Ed. 1346. It is clear that s 6332 is stated in all-inclusive terms of general application. ‘In interpreting federal revenue measures expressed in terms of general application, this Court has ordinarily found them operative in the case of state activities even though States were not expressly indicated as subjects of tax.’ Wilmette Partk Dist. v. Campbell, 338 U.S. 411, 416, 70 S.Ct. 195, 198, 94 L.Ed. 205, and cases cited. We think that the subject matter, the context, the legislative history, and the executive interpretation, i.e., the legislative environment, of s 6332 make it plain that Congress intended to and did include States within the term ‘person’ as used in s 6332.

Nor is there merit in petitioner's contention that Congress, by specifically providing in s 6331 for levy upon the accrued salaries of federal employees, but not mentioning state employees, evinced an intention to exclude the latter from levy. The explanation of that action by Congress appears quite clearly to be that this Court has held in Smith v. Jackson, 246 U.S. 388, 38 S.Ct. 353, 62 L.Ed. 788, that a federal disbursing officer might not, in the absence of express congressional authorization, set off an indebtedness of a federal employee *113 to the Government against the employee's salary, and, pursuant to that opinion, the Comptroller General ruled that an ‘administrative official served with (notices of levy) would be without authority to withhold any portion of the current salary of such employee in satisfaction of the notices of levy and distraint.’ 26 Comp.Gen. 907, 912 (1947). It is evident that s 6331 was enacted to overcome that difficulty and to subject the salaries of federal employees to the same collection procedure as are available against all other taxpayers, including employees of a State. [NOTE:  If they signed a W-4 or filed a return or didn't argue against being called "taxpayers" or used a federal identifying number, then they definitely were federal "employees" because all "taxpayers" are "public officers"]

Accordingly we hold that ss 6331 and 6332 authorize levy upon the accrued salaries of state employees for the collection of any federal tax.

FN3. 26 U.S.C.(Supp. V) s 6332, 26 U.S.C.A. s 6332, provides:

‘(a) Requirement.-Any person in possession of (or obligated with respect to) property or rights to property subject to levy upon which a levy has been made shall, upon demand of the Secretary or his delegate, surrender such property or rights (or discharge such obligation) to the Secretary or his delegate, except such part of the property or rights as is, at the time of such demand, subject to an attachment or execution under any judicial process.

‘(b) Penalty for violation.-Any person who fails or refuses to surrender as required by subsection (a) any property or rights to property, subject to levy, upon demand by the Secretary or his delegate, shall be liable in his own person and estate to the United States in a sum equal to the value of the property or rights not so surrendered, but not exceeding the amount of the taxes for the collection of which such levy has been made, together with costs and interest on such sum at the rate of 6 percent per annum from the date of such levy.

‘(c) Person defined.-The term ‘person,’ as used in subsection (a), includes an officer or employee of a corporation or a member or employee of a partnership, who as such officer, employee, or member is under a duty to surrender the property or rights to property, or to discharge the obligation.'

[Sims v. U.S., 359 U.S. 108, 79 S.Ct. 641 (1959)]

26 CFR §31.3306(i)-1:  Who are employees

 TITLE 26--INTERNAL REVENUE
CHAPTER I--INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY (CONTINUED)
PART 31_EMPLOYMENT TAXES AND COLLECTION OF INCOME TAX AT SOURCE--Table of Contents
Subpart D_Federal Unemployment Tax Act (Chapter 23, Internal Revenue Code of 1954)
Sec.  31.3306(i)-1  Who are employees.

    (a) Every individual is an employee if the relationship between him and the person for whom he performs services is the legal relationship of employer and employee. (The word ``employer'' as used in this section only, notwithstanding the provisions of Sec.  31.3306(a)-1, includes a person who employs one or more employees.)

    (b) Generally such relationship exists when the person for whom  services are performed has the right to control and direct the  individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but how it shall be done. In this connection, it is not necessary that the employer  actually direct or control the manner in which the services are performed; it is sufficient if he has the right to do so. The right to  discharge is also an important factor indicating that the person possessing that right is an employer. Other factors characteristic of an employer, but not necessarily present in every case, are the furnishing of tools and the furnishing of a place to work, to the individual who performs the services. In general, if an individual is subject to the control or direction of another merely as to the result to be accomplished by the work and not as to the means and methods for  accomplishing the result, he is an independent contractor. An individual performing services as an independent contractor is not as to such  services an employee. Individuals such as physicians, lawyers, dentists, veterinarians, construction contractors, public stenographers, and auctioneers, engaged in the pursuit of an independent trade, business, or profession, in which they offer their services to the public, are independent contractors and not employees.

Black’s Law Dictionary, Abridged 6^th Edition, p. 1230:

Public Office.  Essential characteristics of a ‘public office’ are:

(1) Authority conferred by law,

(2) Fixed tenure of office, and

(3) Power to exercise some of the sovereign functions of government.

(4) Key element of such test is that “officer is carrying out a sovereign function’.

(5) Essential elements to establish public position as ‘public office’ are:

    (a)    Position must be created by Constitution, legislature, or through authority   conferred by legislature.

    (b)    Portion of sovereign power of government must be delegated to position,

    (c)    Duties and powers must be defined, directly or implied, by legislature or through legislative authority.

    (d)    Duties must be performed independently without control of superior power other than law, and

    (e)    Position must have some permanency.”

Copyright Family Guardian Fellowship