§ 3509. Determination of employer’s liability for certain employment taxes

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

1. 1982

   Pub. L. 97–248 title II § 270(a) · 96 Stat. 324

   Enacted · 26 U.S.C. § 3509

   Added Pub. L. 97–248, title II, § 270(a), Sept. 3, 1982, 96 Stat. 553

   Source evidence

   Code source credit
   Added Pub. L. 97–248, title II, § 270(a), Sept. 3, 1982, 96 Stat. 553

   Enacted provision · exact public law section
   (a) In General.— Chapter 25 (relating to general provisions relating to employment taxes), as amended by section 271, is amended by adding at the end thereof the following new section: “SEC. 3509. DETERMINATION OF EMPLOYERS LIABILITY FOR CERTAIN EMPLOYMENT TAXES. “(a) In General.— If any employer fails to deduct and withhold any tax under chapter 24 or subchapter A of chapter 21 with respect 26 USC 3401 et seq. 3101. to any employee by reason of treating such employee as not being an employee for purposes of such chapter or subchapter, the amount of the employer’s liability for— “(1) Withholding taxes.— Tax under chapter 24 for such year with respect to such employee shall be determined as if the amount required to be deducted and withheld were equal to 1.5 percent of the wages (as defined in section 3401) paid to such employee. “(2) Employee social security tax.— Taxes under subchapter A of chapter 21 with respect to such employee shall be determined as if the taxes imposed under such subchapter were 20 percent of the amount imposed under such subchapter without regard to this subparagraph. “(b) Employer’s Liability Increased Where Employer Disregards Reporting Requirements.— “(1) In general.— In the case of an employer who fails to meet the applicable requirements of section 6041(a), 6041A, or Post, p. 601. 6051 with respect to any employee, unless such failure is due to reasonable cause and not willful neglect, subsection (a) shall be applied with respect to such employee— “(A) by substituting ‘3 percent’ for ‘1.5 percent’ in paragraph (1); and “(B) by substituting ‘40 percent’ for ‘20 percent’ in paragraph (2). “(2) Applicable requirements.— For purposes of paragraph (1), the term ‘applicable requirements’ means the requirements described in paragraph (1) which would be applicable consistent with the employer’s treatment of the employee as not being an employee for purposes of chapter 24 or subchapter A of chapter 21. “(c) Section No to Apply In Cases of Intentional Disregard.— This section shall not apply to the determination of the employer’s liability for tax under chapter 24 or subchapter A of chapter 21 if such liability is due to the employer’s intentional 26 USC 3401 et seq. 3101. disregard of the requirement to deduct and withhold such tax. “(d) Special Rules.— For purposes of this section— “(1) Determination of liability.— If the amount of any liability for tax is determined under this section— “(A) the employee’s liability for tax shall not be affected by the assessment or collection of the tax so determined, “(B) the employer shall not be entitled to recover from the employee any tax so determined, and “(C) sections 3402(d) and section 6521 shall not apply. “(2) Section not to apply where employer deducts wage but not social security taxes.— This section shall not apply to any employer with respect to any wages if— “(A) the employer deducted and withheld any amount of the tax imposed by chapter 24 on such wages, but “(B) failed to deduct and withhold the amount of the tax imposed by subchapter A of chapter 21 with respect to such wages. “(3) Section not to apply to certain statutory employees.— This section shall not apply to any tax under subchapter A of chapter 21 with respect to an individual described in subsection (d)(3) of section 3121 (without regard to whether such individual is described in paragraph (1) or (2) of such subsection).”.

2. 1988

   Technical and Miscellaneous Revenue Act of 1988

   Pub. L. 100–647 title II § 2003(d) · 102 Stat. 3342

   Substituted · 26 U.S.C. § 3509(d)(3)

   Pub. L. 100–647 substituted “subsection (d)(4)” for “subsection (d)(3)”

   Source evidence

   Code amendment note
   Subsec. (d)(3). Pub. L. 100–647 substituted “subsection (d)(4)” for “subsection (d)(3)”.

   Enacted provision · exact public law section
   (d) Amendment Related to Section 9002 of the Act.— Paragraph (3) of section 3509(d) of the 1986 Code is amended by striking out “subsection (d)(3)” and inserting in lieu thereof “subsection (d)(4)”.

   Effective date note
   Amendment by Pub. L. 101–508 effective as if included in the enactment of Pub. L. 100–647, § 2003(d), see section 5130(b) of Pub. L. 101–508, set out as a note under section 1402 of this title.

3. 1990

   Omnibus Budget Reconciliation Act of 1990

   Pub. L. 101–508 title V § 5130(a)(4) · 104 Stat. 1388

   Substituted · 26 U.S.C. § 3509(d)(3)

   Pub. L. 101–508 substituted “subsection (d)(3)” for “subsection (d)(4)”

   Source evidence

   Code amendment note
   Subsec. (d)(3). Pub. L. 101–508 substituted “subsection (d)(3)” for “subsection (d)(4)”.

   Enacted provision · exact public law section
   (4) Amendment relating to section 2003(d) of public law 100–647.— Paragraph (3) of section 3509(d) of the Internal Revenue 26 USC 3509. Code of 1986 (as amended by section 2003(d) of the Technical and Miscellaneous Revenue Act of 1988 (Public Law 100–647; 102 Stat. 3598)) is further amended by striking “subsection (d)(4)” and inserting “subsection (d)(3)”.

   Effective date note
   Amendment by Pub. L. 101–508 effective as if included in the enactment of Pub. L. 100–647, § 2003(d), see section 5130(b) of Pub. L. 101–508, set out as a note under section 1402 of this title.

4. 2018

   Energy and Water Development and Related Agencies Appropriations Act, 2018

   Pub. L. 115–141 div. U title IV § 401(a)(218) · 132 Stat. 348

   Substituted · 26 U.S.C. § 3509(d)(1)(C)

   Pub. L. 115–141 substituted “section 3402(d)” for “sections 3402(d)”

   Source evidence

   Code amendment note
   Subsec. (d)(1)(C). Pub. L. 115–141 substituted “section 3402(d)” for “sections 3402(d)”.

   Enacted provision · exact public law section
   Sec. 401. The Nuclear Regulatory Commission shall comply with the July 5, 2011, version of Chapter VI of its Internal Commission Procedures when responding to Congressional requests for information.

4 of 4 references resolved to an enrolled provision