Proposed Text
23VAC10-140-10. Definitions.
For the purpose of this chapter and unless otherwise
required by the context The following words and terms when used in this
chapter shall have the following meanings unless the context clearly indicates
otherwise:
"Commissioner" means the Tax Commissioner.
"Employee" includes an individual, whether a
resident or nonresident of Virginia, who performs or performed any service in
Virginia for wages, or a resident of Virginia who performs or performed any
service outside Virginia for wages. The word "employee" also includes
an officer, employee, or elected official of the United States, Virginia, or
any other state or any territory, or any political subdivision thereof, or the
District of Columbia, or any agency or instrumentality of any one or more of
the foregoing or an officer of a corporation.
"Employee" means "employee'' as defined in § 58.1-460 of the Code of Virginia. The relationship of employer and employee is determined in accordance with the test set forth in 26 CFR 31.3401(c)-1.
"Employer" means the Commonwealth of Virginia, or
any of its political subdivisions, the United States, or any agency or
instrumentality of any one or more of the foregoing, or the person, whether a
resident or a nonresident of Virginia, for whom an individual performs or
performed any service as an employee, except that:
1. If the person, governmental unit, or agency thereof, for
whom the individual performs or performed the service does not have control of
the payment of the wages for such services, the term "employer"
(except as used in the definition of "wages" herein) means the person
having control of the payment of such wages. For example, where wages, such as
certain types of pensions or retired pay, are paid by a trust and the person
for whom the services were performed has no legal control over the payment of
such wages, the trust is the "employer."
2. In the case of a person paying wages on behalf of a
nonresident person not engaged in trade or business within Virginia or on behalf
of any governmental unit or agency thereof not located within Virginia, the
term "employer" (except as used in the definition of
"wages" herein) means such person.
For Virginia purposes, whether the relationship of employer
and employee exists is determined in accordance with the test set forth in U.S.
Treasury Reg. Section 31.3401(c)-1.
"Miscellaneous payroll period" means a payroll
period other than a daily, weekly, biweekly, semi-monthly, monthly, quarterly,
semiannual, or annual payroll period.
"Payroll period" means a period for which a
payment of wages is ordinarily made to the employee by his employer.
"Wages" means all remuneration for services
performed by an employee for his employer, including the cash value of all
remuneration paid in any medium other than cash. Wages paid in any form other
than money are measured by the fair value of the goods, lodging, meals or other
consideration given in payment for services. "Wages" does not include
remuneration paid as follows:
1. As fees to a public official.
2. For agricultural labor where remuneration is paid to
workers employed on the farm for services rendered on the farm in the
production, harvesting, and transportation of agricultural products to market
for the farmer-employer.
3. For domestic service in a private home, local college
club, or local chapter of a college fraternity or sorority.
4. For service not in the course of the employer's trade or
business performed in any calendar quarter by an employee, unless the cash
remuneration paid for the service is $50 or more and the service is performed
by an individual who is regularly employed by the employer to perform the
service.
The term "service not in the course of the employer's
trade or business" includes services that do not promote or advance the
trade or business of the employer. As used in this section, the term does not
include service not in the course of the employer's trade or business performed
on a farm operated for profit or domestic service in a private home, local college
club, or local chapter of a college fraternity or sorority. Remuneration paid
for service performed for a corporation does not come within the exception.
An individual is "regularly employed by an employer
during a calendar quarter" only if:
(i) The individual performs service not in the course of
the employer's trade or business for such employer for some portion of the day
on at least 24 days (whether or not consecutive) during such calendar quarter;
or
(ii) The individual was regularly employed (as determined
under subparagraph (i) above) by the employer in the performance of service not
in the course of the employer's trade or business during the preceding calendar
quarter.
5. For services performed by a duly ordained, commissioned,
or licensed minister of a church in the exercise of the ministry or by a member
of a religious order in the exercise of duties required by such order.
6. For services not in the course of the employer's trade
or business, to the extent paid in any medium other than cash.
7. To, or on behalf of, an employee or his beneficiary from
or to a trust described in IRC § 401(a) which is exempt from tax under IRC §
501(a) at the time of such payment unless such payment is made to an employee
of the trust as remuneration for services rendered as such employee and not as
a beneficiary of the trust. A qualified cash or deferred arrangement meeting
the requirements of IRC § 401(k) is deemed to be a trust described in IRC §
401(a).
8. To, or on behalf of, an employee or his beneficiary
under or to an annuity plan which, at the time of such payment, meets the
requirements of IRC § 401(a)(3), (4), (5), and (6).
9. For acting in or service as a member of the crew of a
(i) motion picture feature film, (ii) television series or commercial, or (iii)
promotional film filmed totally or partially in Virginia by an individual or
corporation which conducts business in Virginia for fewer than 90 days of the
tax year and when such film series or commercial is processed, edited and
marketed outside Virginia. Every such individual or corporation shall,
immediately after the filming of such portion of the film, series or commercial
filmed in Virginia, file with the Commissioner on forms furnished by the
Department, a list of the names and social security account numbers of each
actor or crew member who is a resident of Virginia and is compensated by such
individual or corporation.
The exclusion from "wages" of the remuneration
set forth in subdivisions 1 through 9 above does not exempt the recipient from
income tax liability for such remuneration.
"Wages" means "wages'' as defined in § 58.1-460 of the Code of Virginia. The exclusion from wages of a payment does not exempt the payee from income tax liability for the payment. However, the payee and the payor may agree pursuant to § 58.1-466 of the Code of Virginia to have amounts withheld from payments that are not considered wages. A payor who voluntarily withholds income tax consents to be treated as an employer making payment of wages subject to Article 16 (§ 58.1-460 et seq.) of Chapter 3 of Title 58.1 of the Code of Virginia and this chapter.