SECTION 55.302. Definitions

The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise:

(1) Common paymaster--Has the meaning as described in 26 CFR §31.3121(s)-1.

(2) New hire--The term new hire shall have the meaning of any employee required to be reported to the State Directory of New Hires under 453A of the Social Security Act within twenty days of the employee's first day on the job.

(3) Date of hire--The date of hire for a new employee is considered to be the first day services are performed for pay by an individual.

(4) Employee--The term employee means an individual who is an employee as defined in Chapter 24 of the Internal Revenue Code (IRC) of 1986 or an independent contractor as defined by the Internal Revenue Service and whose income is required to be reported on Form 1099-MISC; and does not include an employee of a federal or state agency performing counter intelligence functions, if the head of such agency has determined that reporting pursuant to section 453A of the Social Security Act with respect to the employee could endanger the safety of the employee or compromise an ongoing investigation or intelligence mission. Chapter 24 of the IRC and the regulations promulgated thereunder define an "employee" as every individual performing services if the relationship between the individual and the person for whom the services are performed is the legal relationship of employer and employee (see IRC section 3401(c) and 26 CFR 31.3401(c)-1(a)). Generally, the legal relationship of employer and employee exists when the person for whom the services are performed has the right to control and direct the individual who performs the services not only as to the results to be accomplished, but also as to the details and means by which that result is to be accomplished. 26 CFR 31.3401(c)-1(b).

(5) Employer--In General. The term employer has the meaning given such term in section 3401(d) of the Internal Revenue Code of 1986 and includes any governmental entity and any labor organization. At a minimum, in any case where an employer is required to give an employee a Form W-2 showing the amount of taxes withheld, the employer must meet the new hire reporting requirements. Section 3401(d) goes on to provide in part that "if the person for whom the individual performs or performed the services does not have control of the payment of the wages for such services, the term employer means the person having control of the payment of such wages." Thus, every entity (including governmental entities and labor organizations) is an employer if the entity exercises or has the right to exercise control and direction over an individual who performs or has performed any service for the entity unless the entity does not have control of the payment of the employee's wages. In these cases, the entity having control of the payment of such wages is the "employer." All entities satisfying 3401(d) of the IRC must meet the new hire reporting requirements set forth in section 453(b)(1) of the Social Security Act, as amended.

(6) Illegible record--A record containing indecipherable writing or print.

(7) Incomplete record--A record that does not contain all six required data elements (employee name, address, social security number and employer name, address and federal identification number).

(8) Labor organization--The term labor organization shall have the meaning given such term in section 2(5) of the National Labor Relations Act, and includes any entity (also known as Hiring Hall) which is used by the organization and an employer to carry out requirements described in section 8(f)(3) of such Act of an agreement between the organization and the employer.

(9) Reporting agent--Has the meaning as described in IRS Rev. Proc. 2007-38.

Source Note: The provisions of this §55.302 adopted to be effective October 1, 1998, 23 TexReg 9299; amended to be effective March 5, 2008, 33 TexReg 1761; amended to be effective September 7, 2011, 36 TexReg 5665; amended to be effective June 13, 2015, 41 TexReg 4241