(iii) $255;

(2) If two or more persons are equitably entitled, the total lump sum which may be paid shall be whichever of the following is the least:

(1) Three times the primary insurance amount of the deceased;

(ii) $255; or

(iii) The total amount of burial expenses paid by all persons equitably entitled.

Each equitably entitled applicant shall be paid an amount which bears the same proportion to the total burial expenses paid by all persons equitably entitled, but in no event shall the amount paid to such person exceed the amount of burial expenses paid by him.

[29 FR 12297, Aug. 27, 1964, as amended at 38 FR 14828, June 6, 1973]

§ 404.364 Effect of conviction of felonious and intentional homicide or entitlement to benefits or lump sum based on the deceased's earnings.

A person who has been finally convicted by a court of competent jurisdiction of the felonious and intentional homicide of an insured individual shall not be entitled to monthly benefits or to the lump-sum death payment based on the earnings of such deceased individual and such felon shall be considered nonexistent in determining the entitlement of other persons to monthly benefits or the lump-sum death payment based on the deceased individual's earnings. [36 F.R. 6421, Apr. 3, 1971]

§ 404.366 Hospital insurance benefits; entitlement in general.

See § 405.101 of this chapter. [40 FR 24357, June 6, 1975]

§ 404.367 Hospital insurance benefits; conditions of entitlement.

See § 405.102(a) of this chapter. [40 FR 24357, June 6, 1975]

§ 404.368 Hospital insurance benefits; qualified railroad retirement beneficiary.

See 405.102(b) of this chapter. [40 FR 24357, June 6, 1975]

§ 404.369 Hospital insurance benefits; duration of entitlement.

See 8405.102 (c) and (d) of this chapter.

[40 FR 24357, June 6, 1975]

§ 404.370

Transitional provisions for deemed entitlement of uninsured individuals to monthly benefits under section 202 of the Act.

See $405.103 of this chapter. [40 FR 24357, June 6, 1975]

§ 404.371 Application for hospital insurance entitlement by uninsured individual.

See $405.103 (a) (5) of this chapter. [40 FR 24357, June 6, 1975]

§ 404.372 Exclusions from "deemed entitlement"; Federal employees.

See § 405.103(b)(1) of this chapter. [40 FR 24357, June 6, 1975]

§ 404.373 Exclusion from deemed entitlement; convictions for subversion, treason.

See § 405.103 (b) (2) of this chapter. [40 FR 24357, June 6, 1975]

§ 404.374 Special payments at age 72 to certain uninsured individuals. entitlement. (a) Requirements for An individual is entitled under section 228 of the Act to special payments at age 72 if such individual:

(1) (1) Attained age 72 before 1968 (no quarters of coverage required), or (ii) Attained age 72 after 1967, and has not less than 3 quarters of coverage (see § 404.103), including compensation quarters of coverage defined in § 404.1412, whenever acquired, for each calendar year elapsing after 1966 and before the year in which he attained age 72;

as

(2) Has filed application for special payments under section 228, as provided in paragraphs (b) and (c) of this section; and

(3) Is a resident of one of the 50 States or the District of Columbia and is:

(1) A citizen of the United States; or (li) An alien lawfully admitted for permanent residence who has resided in the United States (as defined in sec. 210(1) of the Act, 1.e., the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa) continuously during the 5 years immediately preceding the month in which he files application for special payments under section 228.

(b) Applications; general. Except as provided in paragraph (c) of this section, an application which is filed by

Oct

§ 404.375 Duration of entitlement to payments under section 228.

An individual is entitled to special payments under section 228 for each month beginning with the first month after September 1966 in which he meets the requirements of § 404.374 (a) and ending with the month preceding the month in which he dies.

[31 F.R. 13533, Oct. 20, 1966]

§ 404.376 Special payments at age 72; amount of payment.

(a) General. The amount of the special payment to which an individual is entitled under the provisions of section 228 of the Act for any month (except as provided in paragraph (b) of this section) shall be as follows:

(1) $69.60 for months after May 1975; (2) $64.40 for months after May 1974 and before June 1975;

(3) $62.10 for months after February 1974 and before June 1974;

(4) $58 for months after August 1972 and before March 1974;

(5) $48.30 for months after December 1970 and before September 1972;

(6) $46 for months after December 1969 and before January 1971;

(7) $40 for months after January 1968 and before January 1970;

(8) $35 for months after September 1966 and before February 1968.

(b) Husband and wife entitled. If both husband and wife are simultaneously entitled (or upon application would be

entitled) to special payments as provided under section 228 of the Act for any month, the amount of the special payment shall be as follows:

(1) For months after May 1975, (i) 1 $69.60 for the husband, and (ii) $34.80 for the wife;

(2) For months after May 1974 and before June 1975 (i) $64.40 for the husband and (ii) $32.20 for the wife;

(3) For months after February 1974 and before June 1974, (i) $62.10 for the husband, and (ii) $31.10 for the wife;

(4) For months after August 1972 and before March 1974, (i) $58 for the husband, and (ii) $29 for the wife;

(5) For months after December 1970 and before September 1972, (i) $48.30 for the husband, and (ii) $24.20 for the wife;

(6) For months after December 1969 and before January 1971, (i) $46 for the husband, and (ii) $23 for the wife;

(7) For months after January 1968 and before January 1970, (i) $40 for the husband, and (ii) $20 for the wife;

(8) For months after September 1966, and before February 1968, (i) $35 for the husband and (ii) $17.50 for the wife. For purposes of this paragraph, the determination of whether an individual has the relationship of husband or wife to another individual is made in accordance with the provisions of § 404.1101 without regard to the provisions of 404.1103 or § 404.1106.

[41 FR 5630, Feb. 9, 1976]

§ 404.377 Reduction of special pay. ments under section 228 for governmental pension system benefits.

(a) General. The special payment to which an individual is entitled for any month is reduced (but not below zero) by the amount of any periodic benefit under a governmental pension system (as defined in paragraph (1) of this section) for which he is eligible for such month. The term "periodic benefit" includes a benefit payable in a lump sum if it is a commutation of, or a substitute for, periodic payments.

(b) Husband or wife entitled. In the case of a husband and wife, if one of such individuals, but not the other, is entitled to a special payment under section 228 for any month, the special payment, after any reduction under paragraph (a) of this section, is further reduced (but not below zero) by the excess (if any) of (1) the total amount of any periodic benefits under

governmental pension systems for which the entitled individual's spouse is eligible for such month, over (2) $34.80 for months after May 1975; $32.20 for months after May 1974 and before June 1975; $31.10 for months after February 1974 and before June 1974; $29 for months after August 1972 and before March 1974; $24.20 for months after December 1970 and before September 1972; $23 for months after December 1969 and before January 1971; $20 for months after January 1968 and before January 1970 and $17.50 for months after September 1966 and before February 1968.

(c) Husband and wife entitled. In the case of a husband and wife both of whom are entitled to a special payment under section 228 for any month:

(1) The special payment of the wife, after any reduction under paragraph (a) of this section, is further reduced (but not below zero), by the excess (if any) of (i) the total amount of any periodic benefits under governmental pension systems for which the husband is eligible for such month, over (ii) $69.60 for months after May 1975; $64.40 for months after May 1974 and before June 1975; $62.10 for months after February 1974 and before June 1974; $58 for months after August 1972 and before March 1974; $48.30 for months after December 1970 and before September 1972; $46 for months after December 1969 and before January 1971; $40 for months after January 1968 and before January 1970; and $35 for months after September 1966 and before February 1968.

(2) The special payment of the husband, after any reduction under paragraph (a) of this section, is further reduced (but not below zero) by the excess (if any) of (i) the total amount of any periodic benefits under governmental pension systems for which the wife is eligible for such month, over (ii) $34.80 for months after May 1975; $32.20 for months after May 1974 and before June 1975; $31.10 for months after February 1974 and before June 1974; $29 for months after August 1972 and before March 1974; $24.20 for months after December 1970 and before September 1972; $23 for months after December 1969 and before January 1971; $20 for months after January 1968 and before January 1970 and $17.50 for months after September 1966 and before February 1968.

(d) Determining whether individual is eligible for periodic benefits. For purposes of this section, in determining whether an individual is eligible for periodic benefits under a governmental pension system:

(1) Such individual is deemed to have filed application for such benefits,

(2) To the extent that entitlement depends on an application by such individual's spouse, such spouse is deemed to have filed application, and

(3) To the extent that entitlement depends on such individual or his spouse having retired, such individual and his spouse are deemed to have retired before the month for which the determination of eligibility is being made.

(e) Periodic benefit payable on basis other than calendar month. For purposes of this section, if any periodic benefit is payable on any basis other than a calendar month, the amount of such benefit is allocated to the appropriate calendar months.

(f) Amount payable less than $1. If, under this section, the amount payable for any month is less than $1, such amount is reduced to zero. In the case of a husband and wife both of whom are entitled to a special payment under section 228 for the month, the preceding sentence is applied with respect to the aggregate amount payable. Thus, if the aggregate amount payable is less than $1, such amount is reduced to zero. However, if the aggregate amount payable to a husband and wife is $1 or more it is not so reduced.

(g) Special payment not a multiple of $0.10. If any special payment computed under the foregoing provisions of this section is not a multiple of $0.10, it is raised to the next higher multiple of $0.10.

(h) Special payments of less than $5. If, under this section, special payments due an individual (or aggregate payments in the case of a husband and wife) amount to less than $5, such special payments may be accumulated until they equal or exceed $5.

(1) "Governmental pension system defined. The term "governmental pension system" means the insurance system established by title II of the Social Security Act or any other system or fund established by the United States, a State, any political subdivision of a State, or any wholly owned instrumentality of any one or more of the foregoing which provides for payment of (1) pensions, (2)

retirement or retired pay, or (3) annuities or similar amounts payable on account of personal services performed by any individual (not including any payment under any workmen's compensation law or any payment by the Veterans' Administration as compensation for service-connected disability or death).

[31 F.R. 13533, Oct. 20, 1966, as amended at 34 FR 12575, Aug. 1, 1969; 41 FR 5630, Feb. 9, 1976]

§ 404.378

Nonpayment of special payments under section 228 of the Act for months in which cash payments are made under public assistance or for which supplemental security income benefits are payable.

(a) General. Except as provided in paragraphs (b) and (c) of this section, no special payment under section 228 of the Act may be paid to an individual for any month if:

(1) In the period October 1966 through December 1973, such individual receives aid or assistance in the form of money payments in such month under a State plan approved under titles I, X, XIV, or XVI, or part A of title IV of the Social Security Act (which titles relate to (i) old-age assistance and medical assistance for the aged, (ii) aid to the blind, (iii) aid to the permanently and totally disabled, (iv) aid to the aged, blind or disabled, or for such aid or medical assistance for the aged, and (v) aid and services to needy families with children, respectively), or

(2) Such individual's husband or wife receives such aid or assistance (as described in paragraph (a) (1) of this section in such month, and under the State plan the needs of such individual were taken into account in determining eligibility for (or amount of) such aid or assistance, or

(3) Beginning January 1974, such individual receives aid or assistance in the form of money payments in such month under a State plan approved under part A of title IV of the Social Security Act (which relates to aid and services to needy families with children), or

eligibility for (or amount of) such aid or assistance, or

(5) Beginning January 1974, such individual is an individual with respect to whom supplemental security income benefits are payable pursuant to title XVI of the Social Security Act (as amended by Public Law 92-603) or section 211 of Public Law 93-66 (which relates to increasing an individual's supplemental security income benefit due to the presence in such individual's home of one or more essential persons) for such month.

(b) State agency notification of termination of aid or assistance under a State plan. No special payment with respect to which paragraphs (a) (1), (a)(2), (a) (3), and (a) (4) of this section apply may be paid for a month in the absence of receipt by the Social Security Administration of a notice from the State agency administering or supervising the administration of the applicable State plan that the aid or assistance referred to in such paragraphs has been or will be terminated with the payment or payments made in such month; nor may such special payment be made for a month unless the Social Security Administration determines that such individual is not an individual with respect to whom supplemental security income benefits are payable pursuant to title XVI of the Social Security Act (as amended by Public Law 92-603) or section 211 of Public Law 9366 for the following month. To be effective for this purpose the notice shall identify the name of the individual age 72 or over on whose behalf aid or assistance was paid, his social security number, and the last month in which the aid or assistance was or will be paid to him or on his behalf. The notice also should show the individual's date of birth or age, his current address, that the notice is being filed in compliance with section 228(d) of the Act as amended, and, where the State agency has the information, whether the individual has filed an application for social security benefits. To permit prompt payment of the special payments under section 228, such notice should be filed as soon as it is determined that the pertinent aid or assistance will be terminated. The notice should be sent to the social security district office servicing the area in which the individual age 72 or over resides. The special payment under section 228 may be paid for the

last month in which the aid or assistance was paid.

(c) Determination that supplemental security income benefits are not payable. No special payment with respect to which paragraph (a) (5) of this section applies may be paid for a month unless the Administration determines that the supplemental security income benefits referred to in such paragraph (a) (5) are not payable for the month following such month. The special payment under section 228 may be paid for the last month for which such benefits were payable. [41 FR 5631, Feb. 9, 1976]

§ 404.379 Suspension where individual is residing outside the United States. No special payment under section 228 for any month may be paid if, during such month, the individual entitled to such special payment is not a resident of one of the 50 States or the District of Columbia.

[31 F.R. 13534, Oct. 20, 1966]

§ 404.380

When special payment treated as monthly insurance benefits.

A special payment under section 228 is treated as a monthly insurance benefit payable under section 202 of the Act for purposes of section 202(t) of the Act, relating to suspension of benefits of aliens who are outside the United States, for purposes of section 202 (u) of the Act relating to conviction of subversive activities and other offenses, and for purposes of section 1840 of the Act, relating to payment of premiums of individuals enrolled under Part B of title XVIII of the Act. However, a special payment under section 228 is not treated as a monthly insurance benefit under section 202 of the Act for purposes of entitlement to hospital insurance benefits under Part A of title XVIII of the Act (see § 404.367), for purposes of section 202 (m) of the Act, relating to minimum benefits, or for purposes of section 1843 (b) or section 1843 (d) (3) (B) of the Act pertaining to State agreements for coverage under Part B of title XVIII of the Act of certain public assistance recipients.

[31 F.R. 13534, Oct. 20, 1966]

§ 404.381 Waiver of benefits pursuant to section 1402 (h) of the Internal Revenue Code of 1954.

When an individual has filed a waiver of benefits in connection with an exemp

tion from self-employment taxes pursuant to section 1402 (h) of the Internal Revenue Code of 1954 and been granted a tax exemption under that section, no benefits or other payments shall be payable to him or on his behalf under title II and Part A of title XVIII of the Act after the filing of such waiver on the basis of his earnings record or the earnings record of any other person or otherwise. No such benefits or payments on the basis of such individual's earnings record shall be made to any other person after the filing of such waiver. Such waiver of benefits also precludes the use of, at any time for any purpose under title II and Part A of title XVIII of the Act, the wages and earnings from selfemployment of such individual earned, paid, or derived in any calendar year beginning before or during the period of tax exemption. If the tax exemption should thereafter cease to be effective, the waiver of benefits shall cease to be effective and benefits may become payable under title II and Part A of title XVIII of the Act, but only to the extent such benefits are based on the individual's earnings from self-employment for and after the first taxable year for which such tax exemption ceases to be effective and on his wages for and after the calendar year which begins in or with the beginning of such taxable year. [34 F.R. 12576, Aug. 1, 1969]

Subpart E-Deductions; Reductions; and Nonpayments of Benefits

AUTHORITY: The provisions of this Subpart E issued under secs. 205, 207 and 1102, 53 Stat. 1368, as amended, 79 Stat. 379, as amended, 49 Stat. 647, as amended; sec. 5 of Reorganization Plan No. 1 of 1953, 67 Stat. 18; 42 U.S.C. 405, 427, 1302. Additional authority cited in parentheses following the sections affected.

SOURCE: The provisions of this Subpart E appear at 32 F.R. 19159, Dec. 20, 1967, unless otherwise noted.