Section 3504 Agent Employment Tax Liability, 75471-75475 [2013-29664]
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Federal Register / Vol. 78, No. 239 / Thursday, December 12, 2013 / Rules and Regulations
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75471
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Aerostar Asset Management FZC,
a.k.a., the following two aliases: Star
Aviation Group; and Star Aviation
Services FZC. Sharjah Airport International Free Zone (Saif Zone),
Sharjah, United Arab Emirates; and
P.O. Box 9300, A2–59, Saif Zone,
Sharjah, U.A.E.
For all items subject to
the EAR. (See § 744.11
of the EAR).
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NUMBER], 12/12/2013.
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Avia Trust, a.k.a., the following one
alias: Avia Trust FZE. Warehouse G–
22 PO Box 54541, Dubai Airport
Free Zone Dubai, U.A.E.
*
*
For all items subject to
the EAR. (See § 744.11
of the EAR).
*
Glasgow International Trading, a.k.a.,
the following one alias: Glasgow
International General Trading LLC.
P.O. Box 6462, Dubai, U.A.E.; and
P.O. Box 42064, Dubai U.A.E.
*
*
*
For all items subject to
the EAR. (See § 744.11
of the EAR).
*
For all items subject to
the EAR. (See § 744.11
of the EAR).
*
Saeed Talebi, a.k.a., the following two For all items subject to
aliases: Al; and Allen Talebi. No. 28
the EAR. (See § 744.11
Street 6, Phase Springs 10, Emirates
of the EAR).
Hills, Dubai, U.A.E., (See alternate
addresses under Canada and Iran).
Sawa Air Aviation FZCO, a.k.a., the fol- For all items subject to
lowing two aliases: Sawa Aviation;
the EAR. (See § 744.11
and Sawa Air. P.O. Box 42707, Al
of the EAR).
Sahel Bldg, Fish Round About,
Deira, Dubai, U.A.E. 254.
*
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Thrust Aviation FZE, 17c–F3 PO Box For all items subject to
5406 Fujairah Free Zone, Fujairah
the EAR. (See § 744.11
U.A.E.; and PO Box 5232 Fujairah
of the EAR).
Free Zone, Fujairah U.A.E.; and Q4–
168 PO 8318 Sharjah Free Zone,
Sharjah, U.A.E.
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Dated: November 21, 2013.
Kevin J. Wolf,
Assistant Secretary for Export
Administration.
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26 CFR Part 31
[TD 9649]
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RIN 1545–BI21
Section 3504 Agent Employment Tax
Liability
Internal Revenue Service (IRS),
Treasury.
ACTION: Final regulations.
AGENCY:
This document contains final
regulations relating to agents authorized
SUMMARY:
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Internal Revenue Service
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DEPARTMENT OF THE TREASURY
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Kadin Satco FZE, No. 28 Street 6,
Phase Springs 10, Emirates Hills,
Dubai, U.A.E.
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by the Secretary under section 3504 of
the Internal Revenue Code to perform
acts required of employers who are
home care service recipients. The final
regulations affect employers and their
designated agents who pay wages for
home care services, which are subject to
taxes under the Federal Unemployment
Tax Act. The final regulations also
modify the existing regulations under
section 3504 to be consistent with the
organizational structure of the Internal
Revenue Service (IRS), and to update
the citation to the Internal Revenue
Code of 1986.
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Federal Register / Vol. 78, No. 239 / Thursday, December 12, 2013 / Rules and Regulations
Effective Date: These regulations
are effective on December 12, 2013.
Applicability Date: For dates of
applicability, see § 31.3504–1(c) of these
regulations.
FOR FURTHER INFORMATION CONTACT:
Michelle R. Weigelt at (202) 622–0047
(not a toll-free number).
SUPPLEMENTARY INFORMATION:
DATES:
Background
This document contains amendments
to 26 CFR part 31 under section 3504 of
the Internal Revenue Code (Code). On
January 13, 2010, the Treasury
Department and the IRS published a
notice of proposed rulemaking (REG–
137036–08, 75 FR 1735, 2010–6 I.R.B.
398) (the proposed regulations) in the
Federal Register under section 3504 of
the Code. The Treasury Department and
the IRS did not hold a public hearing
because there were no requests to speak
at a hearing. The Treasury Department
and the IRS received written and
electronic comments responding to the
proposed regulations. After
consideration of all the comments, the
proposed regulations are adopted as
amended by this Treasury decision. The
comments and revisions are discussed
in the preamble.
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Explanation of Provisions
In case a fiduciary, agent, or other
person has the control, receipt, custody,
or disposal of, or pays the wages of an
employee or group of employees,
employed by one or more employers,
section 3504 of the Code authorizes the
Secretary of the Treasury to promulgate
regulations to authorize the person
(‘‘agent’’) to perform certain specified
acts required of employers. Under
section 3504, all provisions of law
(including penalties) applicable with
respect to employers are applicable to
the agent and remain applicable to the
employer. Accordingly, both the agent
and employer are liable for the
employment taxes and penalties
associated with the employer’s
employment tax obligations which the
agent is authorized to perform. Prior to
the amendments made by these final
regulations, § 31.3504–1 of the
Employment Tax Regulations provided
that the IRS may authorize an agent to
undertake the employment tax
obligations of an employer with respect
to income tax withholding and Federal
Insurance Contributions Act (FICA)
taxes. However, the employer was
required to continue to meet its
employment tax obligations with
respect to Federal Unemployment Tax
Act (FUTA) tax. Like the proposed
regulations, these final regulations
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provide that the IRS may authorize an
agent to undertake the employment tax
obligations of an employer with respect
to FUTA tax in certain circumstances.
Summary of Comments and
Explanation of Revisions
A. Amendments to § 31.3504–1(a)
Under § 31.3504–1(a), an employer
may request that the IRS authorize an
agent under section 3504 to report, file,
and pay income tax withholding, tax
under the FICA, or tax under the
Railroad Retirement Tax Act (RRTA),
with respect to wages or compensation.
The proposed regulations under
§ 31.3504–1(a) proposed amendments to
the existing regulatory language
designed to update citations and be
consistent with the current
organizational structure of the IRS.
One commenter expressed concern
that deletion of the limiting language
‘‘in respect of such acts’’ from these
regulations implied an agent could be
held liable for all of an employer’s
employment tax liabilities, regardless of
which acts the agent was authorized to
perform. Under section 3504, the agent
is only liable for acts the IRS has
authorized the agent to perform on
behalf of the employer. Thus, language
that limits the scope of the agent’s
liability has been reincorporated into
the final regulations.
Another commenter suggested that
the final regulations include a rule that
the agent is only liable for employment
taxes with respect to wages or
compensation paid by the agent on
behalf of the employer. Because section
3504 provides an agent may also be
authorized under section 3504 if the
person has the control, receipt, custody,
or disposal of the wages of an
employer’s employees, a rule that the
agent can only be held liable for
employment taxes with respect to those
wages paid by the agent would be more
narrow than the statute. Therefore, this
rule was not adopted in the final
regulations.
In addition to the change to proposed
§ 31.3504–1(a) made in response to
comments, these final regulations adopt
minor changes for clarity and
consistency.
B. Amendments Under § 31.3504–1(b)
The proposed regulations under
§ 31.3504–1(b) provide a special rule
that allows an employer who is a home
care service recipient to request that the
IRS authorize an agent to act with
respect to FUTA taxes imposed on
wages paid for home care services,
provided that the agent is authorized to
act for the home care service recipient
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for income tax withholding and FICA
tax purposes. The proposed regulations
under § 31.3504–1(b) do not apply to an
agent that is authorized to report, file,
and pay income tax withholding or
FICA tax for an employer who is not a
home care service recipient, or for
wages paid for services other than home
care services.
Several commenters sought legal or
procedural explanations which were
beyond the scope of the proposed
regulations. Thus, those comments are
not addressed in these final regulations.
For example, these regulations do not
address comments seeking clarification
on the identity of the common law
employer if the home care service
recipient has a representative acting on
his or her behalf, the ability of an agent
to delegate its responsibility to a thirdparty, the application of certain
exceptions to FICA and FUTA taxes, the
proper use of employer identification
numbers (EIN) in filing employment tax
returns, and the deposit requirements of
agents. However, Revenue Procedure
2013–39, which is being released
simultaneously with these final
regulations updates the procedures for
requesting that the IRS authorize a
person to act as agent under section
3504, and addresses filing, reporting,
and deposit rules for agents.
1. Certification of State Unemployment
Contributions
Section 3504 provides that all
provisions of law applicable to an
employer apply to the agent. Thus, an
agent authorized under the proposed
regulations for FUTA tax purposes
reports the state unemployment
contributions paid into a state
unemployment fund on behalf of a
home care service recipient as a credit
under section 3302 against the FUTA
tax reported on the agent’s aggregate
FUTA tax return. The IRS has
designated Form 940, Employer’s
Annual Federal Unemployment Tax
(FUTA) Return, as the return to file to
report FUTA tax. The credit can be
reported by the agent regardless of
whether the state unemployment
contributions are made under the name
and state identifying number of the
home care service recipient or of the
agent.
Several commenters expressed
concern that the IRS will be unable to
verify the state unemployment
contributions made on behalf of a home
care service recipient if such
contributions are reported on an
aggregate Form 940 FUTA tax return
using the agent’s name and EIN. The
commenters suggested that each home
care service recipient’s name and EIN be
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included on the aggregate return for
purposes of the annual certification
process.
Following the publication of the
proposed regulations, the IRS issued
Schedule R (Form 940), Allocation
Schedule for Aggregate Form 940 Filers,
for use beginning in tax year 2010.
Agents of home care service recipients
are required to use Schedule R (Form
940) to allocate the information reported
on the aggregate FUTA tax return, and
must separately list each home care
service recipient’s name and EIN on
Schedule R (Form 940). Because the
issuance of Schedule R (Form 940)
resolves the concerns raised by these
commenters, no changes were made to
the final regulations.
2. Domestic Service Employment Tax
Rules and Home Care Services
The proposed regulations define
home care services to include health
care and personal attendant care
services rendered in the home care
service recipient’s home or local
community. Several commenters
requested clarification of whether home
care services constitute domestic
services for employment tax purposes,
particularly when the services involve
travel outside the home.
The Code has special rules for
domestic services. These special rules
include provisions in section 3401(a)(3)
regarding the requirement to withhold
income tax; sections 3121(a)(7)(B),
3306(a)(3), and 3306(c)(2) regarding
minimum dollar thresholds for
imposition of FICA and FUTA taxes;
section 3121(b)(3)(B) regarding
exemption from FICA tax for certain
family employment relationships; and
section 3121(b)(21) regarding exemption
from FICA tax depending on the age of
the service provider. Whether any of
these rules apply in a given situation
depends on whether the services are
‘‘domestic services’’ and whether the
services are provided in the ‘‘private
home’’ of the employer. These terms are
explained in §§ 31.3121(a)(7)–1(a)(2),
31.3306(c)(2)–1, and 31.3401(a)–3 of the
regulations.
Generally, § 31.3121(a)(7)–1(a)(2)
provides that domestic services are
services of a household nature
performed by an employee in or about
a private home of the person by whom
the employee is employed. A private
home is a fixed place of abode of an
individual or family. Sections
31.3306(c)(2)–1 and 31.3401(a)–3
contain similar descriptions for FUTA
tax and income tax withholding
purposes, respectively.
The preamble to the proposed
regulations stated that services provided
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outside the home care service
recipient’s private home may qualify as
home care services for purposes of these
regulations even if the services do not
qualify as domestic service in a private
home of the employer for purposes of
sections 3121(a)(7), 3306(c)(2), and
3401(a)(3).
One commenter requested a rule
deeming the special statutory rules for
domestic services as applying to all
home care services. The determination
of whether the statutory rules for
domestic services apply depends on
whether the services are domestic
services provided in the private home of
the employer as explained in the
regulations. Thus, a bright line rule that
home care services are domestic
services in all cases is beyond the scope
of these regulations, and the proposal
was not adopted.
However, we anticipate that there will
only be limited circumstances when
home care services would not be subject
to the domestic service rules and note
that the regulations on domestic service
described in this section, and other
public guidance currently available
address these comments. For example,
Revenue Ruling 56–109, 1956–1 CB 467,
provides that services performed by an
employee as a companion to a
convalescent employer, including
accompanying the convalescent on
trips, constitute domestic service in a
private home of the employer for
purposes of employment taxes.
Several commenters interpreted the
use of the phrase ‘‘home or local
community’’ in the definition of home
care services to impose geographical
restrictions. The phrase was intended to
indicate that despite the home-based
nature of health care and personal
attendant care services, home care
services may be provided outside of a
home, and was not intended to exclude
services qualifying for funds under the
government program based on the
location at which the services were
provided. Thus, home care services
under the regulations include any
services for which an individual
enrolled in a government program
described in the regulations would be
eligible to receive funds. Similar to how
Rev. Rul. 56–109 describes a situation
where services that are provided outside
the employer’s house nevertheless
constitute ‘‘domestic services in the
private home of the employer,’’ services
provided outside the home or local
community may constitute home care
services. Nevertheless, to avoid the
implication of a geographical limitation
on what services may qualify as home
care services, the phrase was removed
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from the definition of home care
services in the final regulations.
Finally, one commenter interpreted
the definition of home care services to
include only services provided to
elderly individuals and individuals
with physical disabilities, and not to
include services provided to individuals
with intellectual and developmental
disabilities. The definition of home care
services in the proposed regulations are
not limited by the type of disability.
Rather, the definition of home care
services includes any services for which
an individual enrolled in a government
program described in the regulations
would be eligible to receive funds.
Therefore, no changes were made to the
final regulations with regard to the
definition of home care services to
address this comment.
3. Clarification Regarding Home Care
Service Recipients
The proposed regulations define
home care service recipient as any
individual who receives home care
services while enrolled, and for the
remainder of the calendar year after
ceasing to be enrolled, in a program
administered by a Federal, state, or local
government agency that provides
Federal, state, or local government
funds, to pay, in whole or in part, for
the home care services for that
individual. Several commenters
submitted questions regarding this
definition that did not require changes
to the regulations, but with respect to
which clarification is provided in this
preamble.
With regard to the Federal, state, or
local government programs which
provide funds for home care services,
the preamble to the proposed
regulations provides, ‘‘In all such
programs, intermediaries who are
engaged to assist beneficiaries to receive
and distribute funds on the
beneficiaries’ behalf are reviewed and
approved by a state or local government
agency.’’ Several commenters
interpreted this statement as inferring
coordination between the IRS and the
Centers for Medicare and Medicaid
Services (CMS) regarding qualifications
and contracting requirements for agents.
The statement was intended to highlight
the currently existing oversight of the
intermediaries that serve as agents in
these programs by CMS or other
Federal, state, and local government
agencies. There is no anticipated IRS
involvement in the way these agencies
administer these programs, including
selection and monitoring of the
intermediaries.
Application of the proposed
regulations requires that a home care
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service recipient be enrolled in a
program that provides Federal, state, or
local government funds to pay for home
care services, in whole or in part. One
commenter asked whether an individual
who pays for home care services from
his or her personal bank account or with
other non-government funds can be a
home care service recipient within the
meaning of the regulations. An
individual is not a home care service
recipient within the meaning of these
regulations if no government funds are
used to pay for any part of the home
care services performed for the
individual. However, an individual may
be a home care service recipient if the
cost of the home care services are
initially paid for with non-government
funds and such cost is reimbursed in
whole or in part with government funds
provided under the government
program.
Other commenters asked about
procedures an agent should follow
when an individual ceases to be a home
care service recipient. Under § 31.3504–
1(b)(3), a participant qualifies as a home
care service recipient until the end of
the calendar year in which the
participant ceases to be enrolled in the
government program; accordingly, the
agent may act as an agent with respect
to the home care service recipient’s
FUTA tax obligations for the entire
calendar year in which the participant
ceases to qualify as a home care service
recipient. Furthermore, the agent may
continue to act as an agent with respect
to the home care service recipient’s
FICA tax and income tax withholding
obligations pursuant to § 31.3504–1(a)
after a participant ceases to qualify as a
home care service recipient. Treasury
and the IRS do not believe a description
of any specific procedures is needed in
these regulations with regard to the
cessation of home care service recipient
status for FUTA tax purposes. However,
Revenue Procedure 2013–39, which is
being released simultaneously with
these final regulations updates the
procedures to request the IRS authorize
a person to act as agent under section
3504 and clarifies the rules for revoking
authorization.
Special Analyses
It has been determined that this
Treasury decision is not a significant
regulatory action as defined in E.O.
12866. Therefore, a regulatory
assessment is not required. It also has
been determined that section 553(b) of
the Administrative Procedure Act (5
U.S.C. chapter 5) does not apply to this
regulation. Pursuant to the Regulatory
Flexibility Act (5 U.S.C. chapter 6), it is
hereby certified that these regulations
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will not have a significant economic
impact on a substantial number of small
entities. The collection of information
contained in these regulations is a
voluntary written application from an
employer, signed by the employer and
the agent, requesting the IRS approve
the appointment of an agent to perform
the acts required of the employer. The
application contains information
generally available to taxpayers, such as
the name, address, and EIN of the
employer, and ultimately serves to
lessen taxpayer burden by allowing the
employer to have an agent fulfill certain
employment tax obligations.
Accordingly, a regulatory flexibility
analysis is not required. Pursuant to
section 7805(f) of the Internal Revenue
Code, the proposed regulations
preceding these regulations were
submitted to the Chief Counsel for
Advocacy of the Small Business
Administration for comment on its
impact on small business, and no
comments were received.
Drafting Information
The principal author of these final
regulations is Michelle R. Weigelt,
Office of Division Counsel/Associate
Chief Counsel (Tax Exempt and
Government Entities). However,
personnel from other offices of the IRS
and the Treasury Department
participated in their development.
List of Subjects in 26 CFR Part 31
Employment taxes, Income taxes,
Penalties, Pensions, Reporting and
recordkeeping requirements, Railroad
retirement, Social security,
Unemployment compensation.
Adoption of Amendments to the
Regulations
Accordingly, 26 CFR part 31 is
amended as follows:
PART 31—EMPLOYMENT TAXES AND
COLLECTION OF INCOME TAX AT
SOURCE
Paragraph 1. The authority citation
for part 31 continues to read in part as
follows:
■
Authority: 26 U.S.C. 7805 * * *
Par. 2. Section 31.3504–1 is revised to
read as follows:
■
§ 31.3504–1 Designation of agent by
application.
(a) In general. In the event wages as
defined in chapter 21 or 24 of the
Internal Revenue Code (Code), or
compensation as defined in chapter 22
of the Code, of an employee or group of
employees, employed by one or more
employers, is paid by a fiduciary, agent,
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or other person (‘‘agent’’), or if that
agent has the control, receipt, custody,
or disposal of (collectively ‘‘pays’’)
wages or compensation, the Internal
Revenue Service may, subject to the
terms and conditions as it deems
proper, authorize that agent to perform
the acts required of the employer or
employers under those provisions of the
Code and the regulations that apply, for
purposes of the taxes imposed by the
chapter or chapters, with respect to
wages or compensation paid by the
agent. If the agent is authorized by the
Internal Revenue Service to perform
such acts, all provisions of law
(including penalties) and of the
regulations applicable to an employer
with respect to such acts shall be
applicable to the agent. However, each
employer for whom the agent acts shall
remain subject to all provisions of law
(including penalties) and of the
regulations applicable to an employer
with respect to such acts. Any
application to authorize an agent to
perform such acts, signed by the agent
and the employer, shall be made on the
form prescribed by the Internal Revenue
Service and shall be filed with the
Internal Revenue Service as prescribed
in the instructions to the form and other
applicable guidance.
(b) Special rule for home care service
recipients. (1) In general. In the event an
agent is authorized pursuant to
paragraph (a) of this section to perform
the acts required of an employer under
chapters 21 or 24 on behalf of one or
more home care service recipients, as
defined in paragraph (b)(3) of this
section, the Internal Revenue Service
may authorize that agent to perform the
acts as are required of employers for
purposes of the tax imposed by chapter
23 of the Code with respect to wages
paid by the agent for home care services,
as defined in paragraph (b)(2) of this
section, rendered to the home care
service recipient. If the agent is
authorized by the Internal Revenue
Service to perform such acts, all
provisions of law (including penalties)
and of the regulations applicable to an
employer in respect of such acts shall be
applicable to the agent. However, each
employer for whom the agent acts shall
remain subject to all provisions of law
(including penalties) and of the
regulations applicable to an employer
with respect to such acts.
(2) Home care services. For purposes
of this section, the term home care
services includes health care and
personal attendant care services
rendered to the home care service
recipient.
(3) Home care service recipient. For
purposes of this section, the term home
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care service recipient means any
individual who receives home care
services, as defined in paragraph (b)(2)
of this section, while enrolled, and for
the remainder of the calendar year after
ceasing to be enrolled, in a program
administered by a Federal, state, or local
government agency that provides
Federal, state, or local government
funds, to pay, in whole or in part, for
home care services for that individual.
(c) Effective/applicability dates. An
authorization under paragraph (a) in
effect prior to December 12, 2013
continues to be in effect after that date.
Paragraph (b) of this section applies to
wages paid on or after January 1, 2014.
However, pursuant to section 7805(b),
taxpayers may rely on paragraph (b) of
this section for all taxable years for
which a valid designation is in effect
under paragraph (a) of this section.
Beth Tucker,
Deputy Commissioner for Services and
Enforcement.
Approved: September 27, 2013.
Mark J. Mazur,
Assistant Secretary of the Treasury (Tax
Policy).
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AGENCY
40 CFR Part 300
[EPA–HQ–SFUND–2008–0574; EPA–HQ–
SFUND–2012–0069; EPA–HQ–SFUND–
2013–0196, 0197, 0198, 0201, 0202, 0203,
0204 and 0207; FRL–9903–89–OSWER]
National Priorities List, Final Rule
No. 57
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Comprehensive
Environmental Response,
Compensation, and Liability Act of 1980
(‘‘CERCLA’’ or ‘‘the Act’’), as amended,
requires that the National Oil and
Hazardous Substances Pollution
Contingency Plan (‘‘NCP’’) include a list
of national priorities among the known
releases or threatened releases of
hazardous substances, pollutants or
contaminants throughout the United
States. The National Priorities List
(‘‘NPL’’) constitutes this list. The NPL is
intended primarily to guide the
Environmental Protection Agency (‘‘the
EPA’’ or ‘‘the agency’’) in determining
which sites warrant further
investigation. These further
investigations will allow the EPA to
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SUMMARY:
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assess the nature and extent of public
health and environmental risks
associated with the site and to
determine what CERCLA-financed
remedial action(s), if any, may be
appropriate. This rule adds nine sites to
the General Superfund section of the
NPL and changes the name of one NPL
site.
DATES: The effective date for this
amendment to the NCP is January 13,
2014.
ADDRESSES: Contact information for the
EPA Headquarters:
• Docket Coordinator, Headquarters;
U.S. Environmental Protection Agency;
CERCLA Docket Office; 1301
Constitution Avenue NW; William
Jefferson Clinton Building West, Room
3334, Washington, DC 20004, 202–566–
0276.
The contact information for the
Regional Dockets is as follows:
• Holly Inglis, Region 1 (CT, ME, MA,
NH, RI, VT), U.S. EPA, Superfund
Records and Information Center, 5 Post
Office Square, Suite 100, Boston, MA
02109–3912; 617–918–1413.
• Ildefonso Acosta, Region 2 (NJ, NY,
PR, VI), U.S. EPA, 290 Broadway, New
York, NY 10007–1866; 212–637–4344.
• Lorie Baker (ASRC), Region 3 (DE,
DC, MD, PA, VA, WV), U.S. EPA,
Library, 1650 Arch Street, Mailcode
3HS12, Philadelphia, PA 19103; 215–
814–3355.
• Jennifer Wendel, Region 4 (AL, FL,
GA, KY, MS, NC, SC, TN), U.S. EPA, 61
Forsyth Street SW., Mailcode 9T25,
Atlanta, GA 30303; 404–562–8799.
• Todd Quesada, Region 5 (IL, IN, MI,
MN, OH, WI), U.S. EPA Superfund
Division Librarian/SFD Records
Manager SRC–7J, Metcalfe Federal
Building, 77 West Jackson Boulevard,
Chicago, IL 60604; 312–886–4465.
• Brenda Cook, Region 6 (AR, LA,
NM, OK, TX), U.S. EPA, 1445 Ross
Avenue, Suite 1200, Mailcode 6SFTS,
Dallas, TX 75202–2733; 214–665–7436.
• Michelle Quick, Region 7 (IA, KS,
MO, NE), U.S. EPA, 11201 Renner Blvd.,
Mailcode SUPRERNB, Lenexa, KS
66219; 913–551–7335.
• Sabrina Forrest, Region 8 (CO, MT,
ND, SD, UT, WY), U.S. EPA, 1595
Wynkoop Street, Mailcode 8EPR–B,
Denver, CO 80202–1129; 303–312–6484.
• Sharon Murray, Region 9 (AZ, CA,
HI, NV, AS, GU, MP), U.S. EPA, 75
Hawthorne Street, Mailcode SFD 6–1,
San Francisco, CA 94105; 415–947–
4250.
• Ken Marcy, Region 10 (AK, ID, OR,
WA), U.S. EPA, 1200 6th Avenue,
Mailcode ECL–112, Seattle, WA 98101;
206–463–1349.
FOR FURTHER INFORMATION CONTACT:
Terry Jeng, phone: (703) 603–8852,
PO 00000
Frm 00027
Fmt 4700
Sfmt 4700
75475
email: jeng.terry@epa.gov, Site
Assessment and Remedy Decisions
Branch, Assessment and Remediation
Division, Office of Superfund
Remediation and Technology
Innovation (Mailcode 5204P), U.S.
Environmental Protection Agency; 1200
Pennsylvania Avenue NW., Washington,
DC 20460; or the Superfund Hotline,
phone (800) 424–9346 or (703) 412–
9810 in the Washington, DC,
metropolitan area.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. What are CERCLA and SARA?
B. What is the NCP?
C. What is the National Priorities List
(NPL)?
D. How are sites listed on the NPL?
E. What happens to sites on the NPL?
F. Does the NPL define the boundaries of
sites?
G. How are sites removed from the NPL?
H. May the EPA delete portions of sites
from the NPL as they are cleaned up?
I. What is the Construction Completion List
(CCL)?
J. What is the sitewide ready for
anticipated use measure?
K. What is state/tribal correspondence
concerning NPL listing?
II. Availability of Information to the Public
A. May I review the documents relevant to
this final rule?
B. What documents are available for review
at the headquarters docket?
C. What documents are available for review
at the regional dockets?
D. How do I access the documents?
E. How may I obtain a current list of NPL
sites?
III. Contents of This Final Rule
A. Additions to the NPL
B. What did the EPA do with the public
comments it received?
C. Site Name Change
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory
Planning and Review
1. What is Executive Order 12866?
2. Is this final rule subject to Executive
Order 12866 review?
B. Paperwork Reduction Act
1. What is the Paperwork Reduction Act?
2. Does the Paperwork Reduction Act
apply to this final rule?
C. Regulatory Flexibility Act
1. What is the Regulatory Flexibility Act?
2. How has the EPA complied with the
Regulatory Flexibility Act?
D. Unfunded Mandates Reform Act
1. What is the Unfunded Mandates Reform
Act (UMRA)?
2. Does UMRA apply to this final rule?
E. Executive Order 13132: Federalism
1. What is Executive Order 13132?
2. Does Executive Order 13132 apply to
this final rule?
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
1. What is Executive Order 13175?
E:\FR\FM\12DER1.SGM
12DER1
Agencies
[Federal Register Volume 78, Number 239 (Thursday, December 12, 2013)]
[Rules and Regulations]
[Pages 75471-75475]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-29664]
=======================================================================
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DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Part 31
[TD 9649]
RIN 1545-BI21
Section 3504 Agent Employment Tax Liability
AGENCY: Internal Revenue Service (IRS), Treasury.
ACTION: Final regulations.
-----------------------------------------------------------------------
SUMMARY: This document contains final regulations relating to agents
authorized by the Secretary under section 3504 of the Internal Revenue
Code to perform acts required of employers who are home care service
recipients. The final regulations affect employers and their designated
agents who pay wages for home care services, which are subject to taxes
under the Federal Unemployment Tax Act. The final regulations also
modify the existing regulations under section 3504 to be consistent
with the organizational structure of the Internal Revenue Service
(IRS), and to update the citation to the Internal Revenue Code of 1986.
[[Page 75472]]
DATES: Effective Date: These regulations are effective on December 12,
2013.
Applicability Date: For dates of applicability, see Sec. 31.3504-
1(c) of these regulations.
FOR FURTHER INFORMATION CONTACT: Michelle R. Weigelt at (202) 622-0047
(not a toll-free number).
SUPPLEMENTARY INFORMATION:
Background
This document contains amendments to 26 CFR part 31 under section
3504 of the Internal Revenue Code (Code). On January 13, 2010, the
Treasury Department and the IRS published a notice of proposed
rulemaking (REG-137036-08, 75 FR 1735, 2010-6 I.R.B. 398) (the proposed
regulations) in the Federal Register under section 3504 of the Code.
The Treasury Department and the IRS did not hold a public hearing
because there were no requests to speak at a hearing. The Treasury
Department and the IRS received written and electronic comments
responding to the proposed regulations. After consideration of all the
comments, the proposed regulations are adopted as amended by this
Treasury decision. The comments and revisions are discussed in the
preamble.
Explanation of Provisions
In case a fiduciary, agent, or other person has the control,
receipt, custody, or disposal of, or pays the wages of an employee or
group of employees, employed by one or more employers, section 3504 of
the Code authorizes the Secretary of the Treasury to promulgate
regulations to authorize the person (``agent'') to perform certain
specified acts required of employers. Under section 3504, all
provisions of law (including penalties) applicable with respect to
employers are applicable to the agent and remain applicable to the
employer. Accordingly, both the agent and employer are liable for the
employment taxes and penalties associated with the employer's
employment tax obligations which the agent is authorized to perform.
Prior to the amendments made by these final regulations, Sec. 31.3504-
1 of the Employment Tax Regulations provided that the IRS may authorize
an agent to undertake the employment tax obligations of an employer
with respect to income tax withholding and Federal Insurance
Contributions Act (FICA) taxes. However, the employer was required to
continue to meet its employment tax obligations with respect to Federal
Unemployment Tax Act (FUTA) tax. Like the proposed regulations, these
final regulations provide that the IRS may authorize an agent to
undertake the employment tax obligations of an employer with respect to
FUTA tax in certain circumstances.
Summary of Comments and Explanation of Revisions
A. Amendments to Sec. 31.3504-1(a)
Under Sec. 31.3504-1(a), an employer may request that the IRS
authorize an agent under section 3504 to report, file, and pay income
tax withholding, tax under the FICA, or tax under the Railroad
Retirement Tax Act (RRTA), with respect to wages or compensation. The
proposed regulations under Sec. 31.3504-1(a) proposed amendments to
the existing regulatory language designed to update citations and be
consistent with the current organizational structure of the IRS.
One commenter expressed concern that deletion of the limiting
language ``in respect of such acts'' from these regulations implied an
agent could be held liable for all of an employer's employment tax
liabilities, regardless of which acts the agent was authorized to
perform. Under section 3504, the agent is only liable for acts the IRS
has authorized the agent to perform on behalf of the employer. Thus,
language that limits the scope of the agent's liability has been
reincorporated into the final regulations.
Another commenter suggested that the final regulations include a
rule that the agent is only liable for employment taxes with respect to
wages or compensation paid by the agent on behalf of the employer.
Because section 3504 provides an agent may also be authorized under
section 3504 if the person has the control, receipt, custody, or
disposal of the wages of an employer's employees, a rule that the agent
can only be held liable for employment taxes with respect to those
wages paid by the agent would be more narrow than the statute.
Therefore, this rule was not adopted in the final regulations.
In addition to the change to proposed Sec. 31.3504-1(a) made in
response to comments, these final regulations adopt minor changes for
clarity and consistency.
B. Amendments Under Sec. 31.3504-1(b)
The proposed regulations under Sec. 31.3504-1(b) provide a special
rule that allows an employer who is a home care service recipient to
request that the IRS authorize an agent to act with respect to FUTA
taxes imposed on wages paid for home care services, provided that the
agent is authorized to act for the home care service recipient for
income tax withholding and FICA tax purposes. The proposed regulations
under Sec. 31.3504-1(b) do not apply to an agent that is authorized to
report, file, and pay income tax withholding or FICA tax for an
employer who is not a home care service recipient, or for wages paid
for services other than home care services.
Several commenters sought legal or procedural explanations which
were beyond the scope of the proposed regulations. Thus, those comments
are not addressed in these final regulations. For example, these
regulations do not address comments seeking clarification on the
identity of the common law employer if the home care service recipient
has a representative acting on his or her behalf, the ability of an
agent to delegate its responsibility to a third-party, the application
of certain exceptions to FICA and FUTA taxes, the proper use of
employer identification numbers (EIN) in filing employment tax returns,
and the deposit requirements of agents. However, Revenue Procedure
2013-39, which is being released simultaneously with these final
regulations updates the procedures for requesting that the IRS
authorize a person to act as agent under section 3504, and addresses
filing, reporting, and deposit rules for agents.
1. Certification of State Unemployment Contributions
Section 3504 provides that all provisions of law applicable to an
employer apply to the agent. Thus, an agent authorized under the
proposed regulations for FUTA tax purposes reports the state
unemployment contributions paid into a state unemployment fund on
behalf of a home care service recipient as a credit under section 3302
against the FUTA tax reported on the agent's aggregate FUTA tax return.
The IRS has designated Form 940, Employer's Annual Federal Unemployment
Tax (FUTA) Return, as the return to file to report FUTA tax. The credit
can be reported by the agent regardless of whether the state
unemployment contributions are made under the name and state
identifying number of the home care service recipient or of the agent.
Several commenters expressed concern that the IRS will be unable to
verify the state unemployment contributions made on behalf of a home
care service recipient if such contributions are reported on an
aggregate Form 940 FUTA tax return using the agent's name and EIN. The
commenters suggested that each home care service recipient's name and
EIN be
[[Page 75473]]
included on the aggregate return for purposes of the annual
certification process.
Following the publication of the proposed regulations, the IRS
issued Schedule R (Form 940), Allocation Schedule for Aggregate Form
940 Filers, for use beginning in tax year 2010. Agents of home care
service recipients are required to use Schedule R (Form 940) to
allocate the information reported on the aggregate FUTA tax return, and
must separately list each home care service recipient's name and EIN on
Schedule R (Form 940). Because the issuance of Schedule R (Form 940)
resolves the concerns raised by these commenters, no changes were made
to the final regulations.
2. Domestic Service Employment Tax Rules and Home Care Services
The proposed regulations define home care services to include
health care and personal attendant care services rendered in the home
care service recipient's home or local community. Several commenters
requested clarification of whether home care services constitute
domestic services for employment tax purposes, particularly when the
services involve travel outside the home.
The Code has special rules for domestic services. These special
rules include provisions in section 3401(a)(3) regarding the
requirement to withhold income tax; sections 3121(a)(7)(B), 3306(a)(3),
and 3306(c)(2) regarding minimum dollar thresholds for imposition of
FICA and FUTA taxes; section 3121(b)(3)(B) regarding exemption from
FICA tax for certain family employment relationships; and section
3121(b)(21) regarding exemption from FICA tax depending on the age of
the service provider. Whether any of these rules apply in a given
situation depends on whether the services are ``domestic services'' and
whether the services are provided in the ``private home'' of the
employer. These terms are explained in Sec. Sec. 31.3121(a)(7)-
1(a)(2), 31.3306(c)(2)-1, and 31.3401(a)-3 of the regulations.
Generally, Sec. 31.3121(a)(7)-1(a)(2) provides that domestic
services are services of a household nature performed by an employee in
or about a private home of the person by whom the employee is employed.
A private home is a fixed place of abode of an individual or family.
Sections 31.3306(c)(2)-1 and 31.3401(a)-3 contain similar descriptions
for FUTA tax and income tax withholding purposes, respectively.
The preamble to the proposed regulations stated that services
provided outside the home care service recipient's private home may
qualify as home care services for purposes of these regulations even if
the services do not qualify as domestic service in a private home of
the employer for purposes of sections 3121(a)(7), 3306(c)(2), and
3401(a)(3).
One commenter requested a rule deeming the special statutory rules
for domestic services as applying to all home care services. The
determination of whether the statutory rules for domestic services
apply depends on whether the services are domestic services provided in
the private home of the employer as explained in the regulations. Thus,
a bright line rule that home care services are domestic services in all
cases is beyond the scope of these regulations, and the proposal was
not adopted.
However, we anticipate that there will only be limited
circumstances when home care services would not be subject to the
domestic service rules and note that the regulations on domestic
service described in this section, and other public guidance currently
available address these comments. For example, Revenue Ruling 56-109,
1956-1 CB 467, provides that services performed by an employee as a
companion to a convalescent employer, including accompanying the
convalescent on trips, constitute domestic service in a private home of
the employer for purposes of employment taxes.
Several commenters interpreted the use of the phrase ``home or
local community'' in the definition of home care services to impose
geographical restrictions. The phrase was intended to indicate that
despite the home-based nature of health care and personal attendant
care services, home care services may be provided outside of a home,
and was not intended to exclude services qualifying for funds under the
government program based on the location at which the services were
provided. Thus, home care services under the regulations include any
services for which an individual enrolled in a government program
described in the regulations would be eligible to receive funds.
Similar to how Rev. Rul. 56-109 describes a situation where services
that are provided outside the employer's house nevertheless constitute
``domestic services in the private home of the employer,'' services
provided outside the home or local community may constitute home care
services. Nevertheless, to avoid the implication of a geographical
limitation on what services may qualify as home care services, the
phrase was removed from the definition of home care services in the
final regulations.
Finally, one commenter interpreted the definition of home care
services to include only services provided to elderly individuals and
individuals with physical disabilities, and not to include services
provided to individuals with intellectual and developmental
disabilities. The definition of home care services in the proposed
regulations are not limited by the type of disability. Rather, the
definition of home care services includes any services for which an
individual enrolled in a government program described in the
regulations would be eligible to receive funds. Therefore, no changes
were made to the final regulations with regard to the definition of
home care services to address this comment.
3. Clarification Regarding Home Care Service Recipients
The proposed regulations define home care service recipient as any
individual who receives home care services while enrolled, and for the
remainder of the calendar year after ceasing to be enrolled, in a
program administered by a Federal, state, or local government agency
that provides Federal, state, or local government funds, to pay, in
whole or in part, for the home care services for that individual.
Several commenters submitted questions regarding this definition that
did not require changes to the regulations, but with respect to which
clarification is provided in this preamble.
With regard to the Federal, state, or local government programs
which provide funds for home care services, the preamble to the
proposed regulations provides, ``In all such programs, intermediaries
who are engaged to assist beneficiaries to receive and distribute funds
on the beneficiaries' behalf are reviewed and approved by a state or
local government agency.'' Several commenters interpreted this
statement as inferring coordination between the IRS and the Centers for
Medicare and Medicaid Services (CMS) regarding qualifications and
contracting requirements for agents. The statement was intended to
highlight the currently existing oversight of the intermediaries that
serve as agents in these programs by CMS or other Federal, state, and
local government agencies. There is no anticipated IRS involvement in
the way these agencies administer these programs, including selection
and monitoring of the intermediaries.
Application of the proposed regulations requires that a home care
[[Page 75474]]
service recipient be enrolled in a program that provides Federal,
state, or local government funds to pay for home care services, in
whole or in part. One commenter asked whether an individual who pays
for home care services from his or her personal bank account or with
other non-government funds can be a home care service recipient within
the meaning of the regulations. An individual is not a home care
service recipient within the meaning of these regulations if no
government funds are used to pay for any part of the home care services
performed for the individual. However, an individual may be a home care
service recipient if the cost of the home care services are initially
paid for with non-government funds and such cost is reimbursed in whole
or in part with government funds provided under the government program.
Other commenters asked about procedures an agent should follow when
an individual ceases to be a home care service recipient. Under Sec.
31.3504-1(b)(3), a participant qualifies as a home care service
recipient until the end of the calendar year in which the participant
ceases to be enrolled in the government program; accordingly, the agent
may act as an agent with respect to the home care service recipient's
FUTA tax obligations for the entire calendar year in which the
participant ceases to qualify as a home care service recipient.
Furthermore, the agent may continue to act as an agent with respect to
the home care service recipient's FICA tax and income tax withholding
obligations pursuant to Sec. 31.3504-1(a) after a participant ceases
to qualify as a home care service recipient. Treasury and the IRS do
not believe a description of any specific procedures is needed in these
regulations with regard to the cessation of home care service recipient
status for FUTA tax purposes. However, Revenue Procedure 2013-39, which
is being released simultaneously with these final regulations updates
the procedures to request the IRS authorize a person to act as agent
under section 3504 and clarifies the rules for revoking authorization.
Special Analyses
It has been determined that this Treasury decision is not a
significant regulatory action as defined in E.O. 12866. Therefore, a
regulatory assessment is not required. It also has been determined that
section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5)
does not apply to this regulation. Pursuant to the Regulatory
Flexibility Act (5 U.S.C. chapter 6), it is hereby certified that these
regulations will not have a significant economic impact on a
substantial number of small entities. The collection of information
contained in these regulations is a voluntary written application from
an employer, signed by the employer and the agent, requesting the IRS
approve the appointment of an agent to perform the acts required of the
employer. The application contains information generally available to
taxpayers, such as the name, address, and EIN of the employer, and
ultimately serves to lessen taxpayer burden by allowing the employer to
have an agent fulfill certain employment tax obligations. Accordingly,
a regulatory flexibility analysis is not required. Pursuant to section
7805(f) of the Internal Revenue Code, the proposed regulations
preceding these regulations were submitted to the Chief Counsel for
Advocacy of the Small Business Administration for comment on its impact
on small business, and no comments were received.
Drafting Information
The principal author of these final regulations is Michelle R.
Weigelt, Office of Division Counsel/Associate Chief Counsel (Tax Exempt
and Government Entities). However, personnel from other offices of the
IRS and the Treasury Department participated in their development.
List of Subjects in 26 CFR Part 31
Employment taxes, Income taxes, Penalties, Pensions, Reporting and
recordkeeping requirements, Railroad retirement, Social security,
Unemployment compensation.
Adoption of Amendments to the Regulations
Accordingly, 26 CFR part 31 is amended as follows:
PART 31--EMPLOYMENT TAXES AND COLLECTION OF INCOME TAX AT SOURCE
0
Paragraph 1. The authority citation for part 31 continues to read in
part as follows:
Authority: 26 U.S.C. 7805 * * *
0
Par. 2. Section 31.3504-1 is revised to read as follows:
Sec. 31.3504-1 Designation of agent by application.
(a) In general. In the event wages as defined in chapter 21 or 24
of the Internal Revenue Code (Code), or compensation as defined in
chapter 22 of the Code, of an employee or group of employees, employed
by one or more employers, is paid by a fiduciary, agent, or other
person (``agent''), or if that agent has the control, receipt, custody,
or disposal of (collectively ``pays'') wages or compensation, the
Internal Revenue Service may, subject to the terms and conditions as it
deems proper, authorize that agent to perform the acts required of the
employer or employers under those provisions of the Code and the
regulations that apply, for purposes of the taxes imposed by the
chapter or chapters, with respect to wages or compensation paid by the
agent. If the agent is authorized by the Internal Revenue Service to
perform such acts, all provisions of law (including penalties) and of
the regulations applicable to an employer with respect to such acts
shall be applicable to the agent. However, each employer for whom the
agent acts shall remain subject to all provisions of law (including
penalties) and of the regulations applicable to an employer with
respect to such acts. Any application to authorize an agent to perform
such acts, signed by the agent and the employer, shall be made on the
form prescribed by the Internal Revenue Service and shall be filed with
the Internal Revenue Service as prescribed in the instructions to the
form and other applicable guidance.
(b) Special rule for home care service recipients. (1) In general.
In the event an agent is authorized pursuant to paragraph (a) of this
section to perform the acts required of an employer under chapters 21
or 24 on behalf of one or more home care service recipients, as defined
in paragraph (b)(3) of this section, the Internal Revenue Service may
authorize that agent to perform the acts as are required of employers
for purposes of the tax imposed by chapter 23 of the Code with respect
to wages paid by the agent for home care services, as defined in
paragraph (b)(2) of this section, rendered to the home care service
recipient. If the agent is authorized by the Internal Revenue Service
to perform such acts, all provisions of law (including penalties) and
of the regulations applicable to an employer in respect of such acts
shall be applicable to the agent. However, each employer for whom the
agent acts shall remain subject to all provisions of law (including
penalties) and of the regulations applicable to an employer with
respect to such acts.
(2) Home care services. For purposes of this section, the term home
care services includes health care and personal attendant care services
rendered to the home care service recipient.
(3) Home care service recipient. For purposes of this section, the
term home
[[Page 75475]]
care service recipient means any individual who receives home care
services, as defined in paragraph (b)(2) of this section, while
enrolled, and for the remainder of the calendar year after ceasing to
be enrolled, in a program administered by a Federal, state, or local
government agency that provides Federal, state, or local government
funds, to pay, in whole or in part, for home care services for that
individual.
(c) Effective/applicability dates. An authorization under paragraph
(a) in effect prior to December 12, 2013 continues to be in effect
after that date. Paragraph (b) of this section applies to wages paid on
or after January 1, 2014. However, pursuant to section 7805(b),
taxpayers may rely on paragraph (b) of this section for all taxable
years for which a valid designation is in effect under paragraph (a) of
this section.
Beth Tucker,
Deputy Commissioner for Services and Enforcement.
Approved: September 27, 2013.
Mark J. Mazur,
Assistant Secretary of the Treasury (Tax Policy).
[FR Doc. 2013-29664 Filed 12-11-13; 8:45 am]
BILLING CODE 4830-01-P