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in his employ, and $4,000 by D for employment during such year in his employ. Of the total remuneration of $9,000 with respect to employment during the calendar year 1940, only $3,000 constitutes wages. The remuneration paid to A in excess of $3,000 for employment during this year, that is, $6,000, is excluded and does not constitute wages.

Example 2: Employee E, in 1940, is paid $2,500 by employer F on account of $3,500 due him for employment during that year. In 1941 E is paid by employer F the balance of $1,000 due him for employment during the prior year (1940) and also $3,500 for employment during 1941. Of the total remuneration of $4,500 paid to E in 1941, only $3,500 is included in wages, that is, $3,000 (the maximum) with respect to employment during 1941 and $500 with respect to employment during 1940 (this $500 plus the $2,500 paid in 1940 with respect to employment during that year totals $3,000, the maximum wages which could be received by E with respect to employment during the calendar year 1940).

Example 3: Employee G, in 1939, is paid remuneration of $1,500 by employer H for services in employment to be performed in 1940. G performs the services for H in 1940 for which he was paid in 1939, and also performs services in employment in 1940 for employer I for which he is paid $2,500. of the total remuneration of $4,000 paid to G with respect to employment during 1940, only $3,000 is included in wages. The remuneration received by G in excess of $3,000 for employment during 1940, that is, $1,000, is excluded and does not constitute wages. (Preceding subparagraph and examples, in small type, superseded by following subparagraph and example during period covered by this Supplement]

(2) $3,000 limitation with respect to remuneration for employment during 1940 or thereafter. Under section 209 (a) (2) of the act, remuneration paid to an employee prior to January 1, 1947 (whether or not by one or more employers), for employment during any one calendar year after 1939 in excess of the first $3,000 paid to the employee, is excluded from "wages.” [Subparagraph (2) amended by Regs. 3, Jan. 13, 1947, approved Jan. 24, 1947, 12 F.R. 618]

NOTE: In the amendment of $ 403.828 (a) (2), Examples 1, 2, and 3 were deleted.

(3) $3,000 limitation with respect to remuneration paid in 1947 or thereafter for employment. Under section 209 (a) (3) of the act, remuneration paid to an employee after December 31, 1946 (whether or not by one or more employers), for employment in excess of the first $3,000 paid to the employee during any

such calendar year is excluded from wages. Thus section 209 (a) (3) of the act excludes from wages such remuneration paid in any calendar year after 1946 which is in excess of the first $3,000 paid in such calendar year whether the remuneration is attributable to employment in such calendar year or to employment in prior calendar years subsequent to 1936. [Subparagraph (3) added by Regs. 3, Jan. 13, 1947, approved Jan. 24, 1947, 12 F.R. 618]

Example: Employee A, in 1946, is paid $2,500 by employer B on account of $3,500 due him for employment during that year. In 1947 A is paid by B the balance of $1,000 due him for employment during the prior year (1946) and also $3,000 for employment during 1947. of the total remuneration of $4,000 paid to A in 1947 only $3,000 (the maximum creditable) is included in wages.

(b) Employers' plans providing for payments on account of retirement, sickness or accident disability, medical and hospitalization expenses, or death. Under section 209 (a) (4) of the act, the term “wages" does not include the amount of any payment made to, or on behalf of, an employee under a plan or system established by an employer which makes provision for his employees generally or for a class or classes of his employees (including any amount paid by an employer for insurance or annuities, or into a fund, to provide for any such payment), on account of:

(1) Retirement;
(2) Sickness or accident disability;

(3) Medical and hospitalization expenses in connection with sickness or accident disability: or

(4) Death, provided the employee (1) has not the option to receive, instead of provision for such death benefit, any part of such payment or, if such death benefit is insured, any part of the premiums (or contributions to premiums) paid by his employer, and (ii) has not the right, under the provisions of the plan or system or policy of insurance providing for such death benefit, to assign such benefit, or to receive a cash consideration in lieu of such benefit either upon his withdrawal from the plan or system providing for such benefit or upon termination of such plan or system or policy of insurance or of his employment with such employer.

The plan or system established by an employer need not provide for payments on account of all of the specified items,

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but such plan or system may provide for any one or more of such items.

It is immaterial for purposes of this exclusion whether the amount or possibility of such benefit payments is taken into consideration in fixing the amount of an employee's remuneration or whether such payments are required, expressly or impliedly, by the contract of service.

CODIFICATION: In the first sentence of paragraph (b) the statutory reference changed from "section 209 (a) (3)” to read as set forth above, by Regs. 3, Commissioner for Social Security, Jan. 13, 1947, approved by the Federal Security Administrator, Jan. 24, 1947, 12 F.P. 619.

(c) Payment by an employer of employees' tax, or employees' contributions under a State law. The term "wages" does not include the amount of any payment by an employer (without deduction from the remuneration of, or other reimbursement from, the employee) of either (1) the employees' tax imposed by section 1400 of the Federal Insurance Contributions Act (subchapter of chapter 9 of the Internal Revenue Code), or (2) any payment required from an employee under a State unemployment compensation law.

(d) Dismissal payments. Any payments made by an employer to an employee on account of dismissal, that is, involuntary separation from the service of the employer, are excluded from "wages”, provided the employer is not legally bound by contract, statute, or otherwise, to make such payments.

(e) Miscellaneous. In addition to the exclusions specified in paragraphs (a), (b), (c), and (d) of this section, the following types of payments are excluded from wages:

(1) Remuneration for services which do not constitute employment under section 209 (b) of the act.

(2) Remuneration for services which are not deemed to be employment under section 209 (c) of the act.

(3) Tips or gratuities paid directly to an employee by a customer of an employer, and not accounted for by the employee to the employer.

(4) Ordinarily, amounts paid to traveling salesmen or other employees as allowance or reimbursement for traveling or other expenses incurred in the business of the employer are excluded from wages only to the extent actually

incurred and accounted for by the employee to the employer.

(5) Remuneration paid prior to January 1, 1937.

FAMILY RELATIONSHIPS

SECTION 209 (m) OF THE ACT In determining whether an applicant is the wife, widow, child, or parent of a fully insured or currently insured individual for purposes of this title, the Board shall apply such law as would be applied in determining the devolution of intestate personal property by the courts of the State in which such insured individual is domiciled at the time such applicant files application, or, if such insured individual is dead, by the courts of the State in which he was domiciled at the time of his death, or if such insured individual is or was not so domiciled in any State, by the courts of the District of Columbia. Applicants who according to such law would have the same status relative to taking intestate personal property as a wife, widow, child, or parent shall be deemed such.

§ 403.829 Applicable State law and status-(a) Applicable State law defined. “Applicable State law" is the law which the courts of the domicile of the wage earner, with respect to whose wages an applicant claims benefits or a lump sum, would apply in deciding who is a wife, widow or widower, child, or parent, when determining the devolution of intestate personal property. A living wage earner's domicile is determined as of the time the applicant filed his claim for benefits or a lump sum. A deceased wage earner's domicile is determined as of the time of such wage earner's death. If the wage earner was not domiciled in any State, applicable State law is the law which the courts of the District of Columbia would apply when determining the devolution of such property.

Example 1: W, who was the wife of H, is determined after his death to be his widow under the law relating to the devolution of intestate personal property but held not entitled to share in the distribution of H's intestate personal property, solely on the ground that by a valid antenuptial contract she waived her right to share in such property.

W is a widow under applicable State law within the meaning of section 209 (m) of the act. It is immaterial for the purposes of that subsection whether she is actually entitled to inherit.

Example 2: H and w, husband and wife, are domiciled in State X. W secures a divorce decree in another State under circumstances which would render the decree invalid in State X. W returns to State X and marries F. F is domiciled in State X at the time W's application for wife's insurance benefits is filed as the alleged wife of F.

W is not the wife of F under the law which would be applied by the courts of State X when determining the devolution of intestate personal property. She is therefore not F's wife under applicable State law, within the meaning of section 209 (m) of the act.

(b) Status under applicable State law. An individual who is not a wife, widow or widower, child, or parent under applicable State law, but who is treated as such under such law for the purpose of determining the devolution of intestate personal property, has the same "status" as a wife, widow or widower, child, or parent. Thus, under the law of some States, an individual who is not a wife because her supposed marriage was void, may nevertheless be treated as a wife under such law, under certain strictly limited conditions. Such an individual has the "status" of a wife.

SECTION 209 (1) OF THE ACT The term "wife" means the wife of an individual who either (1) is the mother of such Individual's son or daughter, or (2) was married to him prior to January 1, 1939, or if later, prior to the date upon which he attained the age of sixty.

$ 403.830 Definition of "wife". An individual is the “wife" of a wage earner as that term is used in Title II of the act, if she meets the following requirements:

(a) She is the wife of such wage earner, or has the same status as a wife, under applicable State law (see $ 403.829); and

(b) She either:

(1) Is the mother of the wage earner's son or daughter; or

(2) Was married to such wage earner (became his wife or acquired the status as such, under applicable State law)

(1) Prior to January 1, 1939, or, 11 later

(11) Prior to the date upon which he attained the age of sixty.

An individual is the mother of a wage earner's son or daughter within the meaning of subparagraph (1) of this paragraph, if a son or daughter was born to her and such wage earner, even though such son or daughter died before a claim for benefits was filled which involved the determination of whether such individual is a "wife."

Example 1: H at the age of 70 married W in December 1938. W is a wife under applicable State law,

Since H married W prior to January 1, 1939, and since W is a wife under applicable State law, she is the "wife" of H within the meaning of this section.

Example 2: H at the age of 61 married W on January 2, 1939, On January 3, 1940, a son was born to W by H. The son died January 5, 1940. W, who is a wife under applicable State law, applies for wife's insurance benefits after the death of her son.

Although w did not marry H prior to January 1, 1939, and married him after the date on which he attained age 60, she is the "wife" of H within the meaning of this section, since she is his wife under applicable State law and is the mother of his son. (Preceding statutory provision and section, in small type, superseded by following statutory provision and section during period covered by this Supplement]

SECTION 209 (1) OF THE ACT The term "wife" means the wife of an individual who either (1) is the mother of such individual's son or daughter, or (2) was married to him (prior to January 1, 1939, or if later, prior to the date upon which he attained the age of sixty) for a period of not less than thirty-six months immediately preceding the month in which her application is filed. (As amended by section 408 of the Act of August 10, 1946 (60 Stat. 988). Applicable only to applications for benefits filed after December 31, 1946. The words in italics were added and the words in brackets were deleted by the amendment.)

§ 403.830 Definition of "wife." Section 408 of the 1946 amendments to the act, which is applicable in cases of applications filed after December 31, 1946, eliminates the provision that a wife who is not the mother of the wage earner's son or daughter cannot qualify for wife's benefits unless she had been married to the wage earner before he attained age 60 or before January 1, 1939. The amendment permits a wife otherwise eligible for a wife's benefit to qualify after having been married to the wage earner for not less than 36 months immediately preceding the month in which her application is filed even though she is not the mother of the wage earner's son or daughter.

An individual is the "wife" of the wage earner as that term is used in Title II of the Act if she meets the following requirements:

(a) She is the wife of such wage earner, or has the same status as a wife, under applicable State law (see $ 403.829); and

(b) She either

(1) Is the mother of the wage earner's son or daughter; or

(2) Only in cases of applications filed prior to January 1, 1947. Was married to such wage earner (became his wife or acquired the status as such, under applicable State law) (i) prior to January 1, 1939, or, if later (ii) prior to the date upon which he attained the age of sixty; or

(3) In cases of applications filed after December 31, 1946. Was married to such wage earner (was his wife or held the status as such under applicable State law) for a period of not less than 36 calendar months immediately preceding the month in which her application is filed.

An individual is the mother of a wage earner's son or daughter within the meaning of paragraph (b) (1) of this section if a son or daughter was born to her and such wage earner, even though such son or daughter died before a claim for benefits was filed which involved the determination of whether such individual is a "wife.”

Example 1: H, at the age of 66, married W on November 5, 1943. W is a wife under applicable State law.

In February 1946 H became entitled to a primary insurance benefit. In February 1947 W attained age 65 and applied for wife's Insurance benefits.

Because H was married to W for a period of 36 calendar months immediately preceding the month in which she filed her application and because W is a wife under applicable State law, she is the "wife" of H within the meaning of this section.

Example 2: H and W who had been married for many years and were the parents of an adult son were divorced in 1939.

They remarried in October 1945. W is the wife of H under applicable State law.

In January 1946 H became entitled to a primary insurance benefit. In March 1947 W attained age 65 and applied for wife's Insurance benefits.

Although w had not been married to H for a period of 36 calendar months immediately preceding the month in which she fled her application, she is the "wife" of H within the meaning of this section because she is his wife under applicable State law and is the mother of his son. (Regs. 3, amended, Jan. 13, 1947, approved Jan, 24, 1947, 12 F.R. 619)

(d) (2) under section 202 (g) of the act), if she meets the following requirements:

(a) She is the widow of the wage earner, or has the same status as a widow, under applicable State law (see 8 403.829); and

(b) She either (1) is the mother of the wage earner's son or daughter, or (2) was married to the wage earner (became his wife, or acquired the status as such, under applicable State law) prior to the beginning of the twelfth month before the month in which he died.

An individual is the mother of a wage earner's son or daughter within the meaning of subparagraph (1) of this paragraph, if a son or daughter was born to her and such wage earner, even though such son or daughter died before a claim for benefits was filed which involved the determination of whether such individual is a "widow", and even though such son or daughter was born after the death of such wage earner.

Example: W married H in March 1939, when he was 61. H died in April 1940. W is his widow under applicable State law. There were no children born to them. Although there were no children born to W and H, W is the "widow" within the meaning of this section since she was married to him prior to the beginning of the twelfth month before the month in which he died. Had H died in March 1940, instead of in April, W would not meet the requirement of this section.

SECTION 209 (k) OF THE ACT The term "child" (except when used in section 202 (g)) means the child of an individual, and the stepchild of an individual by a marriage contracted prior to the date upon which he attained the age of sixty and prior to the beginning of the twelfth month before the month in which he died, and a child legally adopted by an individual prior to the date upon which he attained the age of sixty and prior to the beginning of the twelfth month before the month in which he died. SECTION 409 OF THE ACT OF AUGUST 10, 1946

(60 STAT. 988) (a) Section 209 (k) of such Act is amended to read as follows:

(k) The term "child" means (1) the child of an individual, and (2) in the case of a living individual, a stepchild or adopted child who has been such stepchild or adopted child for thirty-six months immediately preceding the month in which application for child's benefits is filed, and (3) in the case of a deceased individual, a stepchild or adopted child who was such stepchild or adopted child for twelve months immediately preceding the month in which such individual died.

SECTION 209 (1) OF THE ACT The term "widow" (except when used in section 202 (g)) means the surviving wife of an individual who either (1) is the mother of such individual's son or daughter, or (2) was married to him prior to the beginning of the twelfth month before the month in which he died.

$ 403.831 Definition of "widow.An individual is the "widow" of a wage earner, as that term is used in Title II of the act (except as stated in § 403.408

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(b) The amendment made by subsection (a) of this section shall be applicable only in cases of applications for benefits under this title filed after December 31, 1946. [Statutory provision from section 409 added, by Regs. 3, Jan. 13, 1947, approved Jan. 24, 1947, 12 F.R. 619]

$ 403.832 Definition of "child." An individual is a "child" as that term is used in Title II of the act (except as stated in $ 403.408 (d) (2), under section 202 (g) of the act), if he meets the requirements under paragraphs (a), (b), or (c) of this section:

(a) Children. A or daughter (by blood) of a wage earner, who is the child of such wage earner or has the same status as a child, under applicable State law (see $ 403.829). 1s the "child" of such wage earner.

Example: A child C was born out of wedlock to M. Under the law of the State where M was domiciled (applicable State law), C is the child of M. C is the "child" of M within the meaning of this section.

(b) Stepchildren. An individual who is the stepchild of a wage earner by virtue of a marriage valid under applicable State law, which was contracted prior to the date upon which the wage earner attained the age of 60 and prior to the beginning of the twelfth month before the month in which the wage earner died, is a "child" of such wage earner.

Example: H and W, husband and wife, had a child, c. H died. W then contracted a marriage with F, which was valid under the law of the State where she and F were domiciled (applicable State law). F was 35 at the time. Two years later F died. Under applicable State law a stepchild is not a child. C is nevertheless a "child" of F, since he was a stepchild of F by virtue of a marriage contracted prior to the date on which Fattained the age of 60, and prior to the twelfth month before the month in which F died.

(c) Adopted children. An individual who was legally adopted by a wage earner in accordance with applicable State law, prior to the date upon which the wage earner attained the age of 60 and prior to the beginning of the twelfth month before the month in which the wage earner died, is a "child" of such wage earner.

Example: F, at the age of 55, legally adopted C, in accordance with applicable State law. Two years later F died. C is the "child" of F, since he was adopted in accordance with applicable State law prior to the date upon which F attained age 60, and prior to the twelfth month before the month in which F died. It is immaterial whether C is considered a child under applicable State law. (Preceding section, in small type, superseded by following section during period covered by this Supplement]

$ 403.832 Definition of "child. Section 409 of the 1946 amendments to the

act, which is applicable in cases of applications filed after December 31, 1946, changes the definition of stepchild and adopted child contained in the 1939 Act. This section eliminates the requirement that in order for a stepchild or adopted child to qualify for a child's benefits, the relationship between the child and the wage earner must have been created by a marriage or an adoption which took place before the wage earner attained age 60 and prior to the beginning of the twelfth month before the month in which the wage earner died. The amendment permits a stepchild and an adopted child otherwise eligible for a child's benefit to qualify after the step-relationship or adoptive relationship has existed, where the wage earner is alive, for not less than 36 months immediately preceding the month in which application for child's benefits is filed; or where the wage earner is dead, for not less than 12 months immediately preceding the month in which the wage earner died.

An individual is a "child" as that term is used in Title II of the act (except as stated in $ 403.408 (d) (2), under section 202 (g) of the act), if he meets the requirements under paragraphs (a), (b), or (c) of this section:

(a) Children. A son or daughter (by blood) of a wage earner, who is the child of such wage earner or has the same status as a child, under applicable State law (see $ 403.829), is the "child" of such wage earner.

Example: A child C was born out of wedlock to M. Under the law of the State where M was domiciled (applicable State law), C is the child of M. C is the "child" of M within the meaning of this section.

(b) Stepchildren-(1) Only in cases of applications filed prior to January 1, 1947. An individual who is the stepchild of a wage earner by virtue of a marriage valid under applicable State law, which was contracted prior to the date upon which the wage earner attained the age of 60 and prior to the beginning of the twelfth month before the month in which the wage earner died, is a "child" of such wage earner.

Example: H and w, husband and wife, had a child C. H died. W then contracted a marriage with F, which was valid under the law of the State where she and F were domiciled (applicable State law). F was 35 at the time. Two years later F died. Under applicable State law a stepchild is not a child. C is nevertheless a "child" of F, since he was a stepchild of F by virtue of a marriage

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