they customarily lived together as husband and wife in the same place of abode. The temporary absence of one spouse from such place of abode does not preclude a finding that they were "living in the same household."

(b) Temporary absence. The absence of one spouse from the place of abode in which both had customarily lived as husband and wife shall, in the absence of evidence to the contrary, be considered temporary:

(1) If such absence was due to service in the armed forces of the United States;

or

(2) If the period of absence from their place of abode did not exceed 6 months, and neither spouse was outside the United States, and the absence was due to business or employment reasons, or because of confinement in a penal institution or in a hospital, nursing home, or other curative institution; or

(3) In any other case, if the evidence establishes that despite such absence they nevertheless reasonably expected to resume physically living together at some time in the reasonably near future. Where the death of one of the parties occurred while away from their place of abode for treatment or care of an illness or injury (e.g., in a hospital), the fact that the death was foreseen as possible or probable does not in and of itself preclude a finding that the parties were living in the same household at the time of death.

(c) Absences other than temporary In situations other than those described in paragraph (b) of this section, the absence shall not be considered temporary, and the parties may not be found to be living in the same household. A finding of temporary absence would not be justified where one of the parties was committed to a penal institution for life or for a period exceeding the reasonable life expectancy of either, or was under a sentence of death; or where the parties had ceased to live in the same place of abode because of marital difficulties and had not resumed living together before death.

(d) Time when "living in the same household" had to exist. The determination as to whether the parties were "living in the same household" shall be based upon the facts and circumstances as of the time of death of the spouse on whose earnings record a lump-sum death payment is claimed.

[25 F.R. 11055, Nov. 22, 1960]

§ 404.1113 "Living with” and “living in such individual's household."

(a) Defined. "Living with" as used in sections 202(d) (3), 202(d)(4), 202(d) (8), 202(d) (9), and 216(h) (3) of the Act as amended and "living in such individual's household" as used in section 216(e) of the Act mean the parent and child are sharing the same residence and that the parent is exercising or has the right to exercise parental control and authority over the child. As used in this section, the term "parent" includes a natural parent, legally adopting parent, stepparent, the foster parent as to whom the child-claimant has the status of "child" under a theory of "equitable adoption," and the grandparent or stepgrandparent.

(b) Periodic or temporary separation. A child and parent will be considered to be sharing the same residence during a periodic or temporary separation if the circumstances indicate that the child and parent have shared and again expect to share a common residence when conditions permit; for example, the parent, prior to his induction into the Armed Forces, shared a common residence with the child or with the child's mother if the child was born during the separation. However, a child is not considered to be "living with" his parent or "living in such individual's household" in situations where the parent does not have the right to exercise parental control and authority over the child; for example, if the child is in the Armed Forces or is committed to a correctional institution.

(c) Time when "living with" and "living in such individual's household" had to exist. For purposes of sections 202(d) (3) and 202(d) (4) of the Act the determination as to whether the child was "living with" his parent shall be based on the facts and circumstances at the times prescribed in § 404.323 (a). For purposes of section 216(h) (3) of the Act, the determination shall be based on the facts and circumstances at the times prescribed in § 404.1101(d). For purposes of section 216(e) of the Act the determination as to whether the child was "living in such individual's household" shall be based on the facts and circumstances at the time such individual died. For purposes of sections 202(d) (8) and 202(d) (9) of the Act, the determination as to whether the child was "living with" his parent (including his grandparent or stepgrandparent) shall be based on the

facts and circumstances for the year immediately preceding the month prescribed in §§ 404.323(a) (4) (ii) (C) and 404.327a respectively, but only if "living with" began before the child attained age 18. If section 202(d) (8) or 202(d) (9) of the Act applies, the child must have been "living with" his parent in each month of the year except if the child were born during the applicable year, in which case the child must have been "living with" his parent for substantially all of the year prescribed in §§ 404.323 (a) (4) (ii) (C) and 404.327a respectively.

[33 FR 17902, Dec. 3, 1968, as amended at 39 FR 43715, Dec. 18, 1974]

§ 404.1114 Waiver of 9-month re. quirement for widow, stepchild, or widower.

(a) General. Except as provided in paragraph (c) of this section, the requirement in § 404.1104(e) or § 404.1107 (e) that the surviving spouse of an individual have been married to such individual for a period of not less than 9 months immediately prior to the day on which such individual died in order to qualify as such individual's widow or widower, and the requirement in § 404.1109 (b) that the stepchild of a deceased individual have been such stepchild for not less than 9 months immediately preceding the day on which such individual died in order to qualify as such individual's child, shall be deemed to be satisfied, where such individual dies within the applicable 9-month period if:

(1) His or her death is accidental (as defined in paragraph (b) of this section), or

(2) His or her death occurs in line of duty while he or she is a member of a uniformed service serving on active duty (as defined in § 404.1013(f) (2) and (3)),

or

(3) The surviving spouse had been previously married to the individual for at least 9 months or the surviving stepchild had been the stepchild of such individual for at least 9 months during a previous marriage of such stepchild's parent to the individual; and (i) the previous marriage between the individual and the surviving spouse (or the stepchild's parent) ended in divorce, and (ii) the surviving spouse (or the stepchild's parent) had been remarried to the individual at the time of his death.

(b) Accidental death. For purposes of paragraph (a)(1) of this section the death of an individual is accidental if

such individual receives bodily injuries solely through violent, external, and accidental means and, as a direct result of the bodily injuries and independently of all other causes, loses his or her life not later than 3 months after the day on which he or she receives such bodily injuries. The term "accident" means an event that was unpremeditated and unforeseen from the standpoint of the deceased individual. To determine whether the death of an individual did, in fact, result from an accident the Administration will consider all the circumstances surrounding the casualty. An intentional and voluntary suicide will not be considered to be death by accident; however, suicide by an individual who is so insane as to be incapable of acting intentionally and voluntarily will be considered to be death by accident. In no event will the death of an individual resulting from violent and external causes be considered a suicide unless there is direct proof that the fatal injury was selfinflicted.

(c) Applicability. (1) The provisions of this section apply with respect to monthly benefits under title II of the Act for months after December 1972, except that such provisions shall not apply if the Social Security Administration determines that at the time of the marriage involved, the individual involved could not have reasonably been expected to live for 9 months.

(2) The provisions of paragraph (a) (1) and (2) of this section shall also apply for months after January 1968 and before January 1973 if, in the case of the surviving spouse, he or she was married to the individual for a period of not less than 3 months prior to the day on which such individual died or, in the case of the stepchild, he or she had been such stepchild for not less than 3 months immediately preceding the day on which the individual died. In either case, the provisions shall not apply if the Secretary determines that at the time of the marriage involved, the individual could not have reasonably been expected to live for 9 months.

134 FR 386, Jan. 10, 1969, as amended at 39 FR 43716, Dec. 18, 1974] Subpart M-Coverage of Employees of State and Local Governments AUTHORITY: The provisions of this Subpart M issued under secs. 205, 218, 227, 1102, 53 Stat. 1368, as amended, 64 Stat. 514, as amended, 79 Stat. 379, as amended, 49 Stat.

647, as amended; sec. 5, Reorg. Plan No. 1 of 1953, 67 Stat. 18, 631; 42 U.S.C. 405, 418, 427, 1302, unless otherwise noted.

§ 404.1201

General effect of section 218

of the Act. (a) States. Under the provisions of section 218 of the act a State may request the Secretary of Health, Education, and Welfare to enter into an agreement with the State for the purpose of extending to certain employees of the State and Its political subdivisions protection accorded other employees by the old-age, survivors, and disability insurance system embodied in the Social Security Act. Each State may signify its intention to extend the benefits of the system to certain groups of its employees and to certain groups of employees of its political subdivisions by requesting the Secretary of Health, Education, and Welfare to enter into an agreement with the State to provide for coverage under the old-age, survivors, and disability insurance system of any one or more groups of such employees.

(b) Instrumentalities of two or more States. The system may be extended also to services performed by individuals as employees of any instrumentality of two or more States if such instrumentality requests the Secretary of Health, Education, and Welfare to enter into an agreement with it to provide for the extension of the system to such employees. For the purposes of the regulations in this subpart and to the extent not inconsistent therewith, the provisions in this subpart, when they refer to a State, shall apply, as well, to an instrumentality of two or more States.

[20 F.R. 3329, May 14, 1955, as amended at 24 F.R. 6615, Aug. 14, 1959]

§ 404.1210 Scope of this subpart.

(a) Contribution with respect to wages paid after 1950. The regulations in this subpart relate to contributions on wages paid and received on and after January 1, 1951, with respect to employment covered under agreements made pursuant to section 218 of the act.

(b) Adjustments, settlements, and claims. The regulations in this subpart also relate to adjustments, settlements, and claims made in connection with the

contributions paid on wages paid and received on or after January 1, 1951, with respect to employment covered under agreements made pursuant to section 218 of the act.

(c) Identification of States, political subdivisions, and employees thereof The regulations in this subpart also relate to the use after December 31, 1950 of account numbers assigned to employees, identification numbers assigned to States and to political subdivisions thereof included in agreements made pursuant to section 218 of the act, and to applications for and assignments of such numbers under agreements made pursuant to section 218 of the act.

[20 F.R. 3329, May 14, 1955]

§ 404.1220 Measure of contribution.

The State's contribution is measured by the amount of wages actually or constructively paid on or after the effective date of an agreement entered into between the State and the Secretary with respect to services performed in employment by an employee in a coverage group included in such agreement. (See § 404.1003 relating to employment and §§ 404.1026 and 404.1027 relating to wages.)

[20 FR. 3329, May 14, 1955]

§ 404.1221 Rate and computation of contributions.

(a) Contributions for calender years prior to 1966. (1) The rates of taxes imposed on employees by section 1400 of the Internal Revenue Code of 1939 for the respective calendar years prior to 1955, and by section 3101 of the Interna Revenue Code of 1954 for the respective calendar years 1955 through 1965, are as follows:

For the calendar years:

1951 through 1953-
1954, 1955, and 1956..
1957 and 1958-
1959

1960 and 1961..
1962

1963 through 1965--

Percent

114

2

21/

24

8

8

35%

(2) The rates of taxes imposed on employers by section 1410 of the Internal Revenue Code of 1939 for the respective calendar years prior to 1955, and by sec

(a) In general. The State is liable for contributions with respect to the wages paid to individuals performing services in employment as employees in any coverage group included in the agreement. With respect to service covered under the agreement and performed subsequent to the date of execution of the agreement, the liability of the State attaches at the time that the wages are either actually or constructively paid to individuals performing service in employment as employees in any coverage group included in the agreement, notwithstanding the fact that the wages are paid in media other than money (for example, wages paid in board or lodging; see § 404.1026(a)). If the agreement is effective retroactively with respect to service in employment performed by individuals as members of any coverage group, the liability of the State with respect to wages paid during such retroactive period attaches as of the date of execution of the agreement, or the modification of the agreement pursuant to which the coverage group is included thereunder, as the case may be.

(b) Measure of State's liability. The amount of the State's liability for contributions is equal to the sum of the taxes which would be imposed by sections 1400 and 1410 of the Internal Revenue Code of 1939, if the services of the employees covered by the agreement constituted employment as defined in section 1426 of such code, and the sum of the taxes which would be imposed by sections 3101 and 3111 of the Internal Revenue Code of 1954, if the services of the employees covered by the agreement constituted employment as defined in section 3121 of such code. (See § 404.1222a for the computation of contributions where the provisions of section 218(e) (2) of the Act are applicable.)

[26 F.R. 12685, Dec. 29, 1961]

§ 404.1222a

(a)

Limitation on State's liabil ity for contributions for multiple employment.

In general. Notwithstanding paragraph (b) of § 404.1222, where:

(1) An individual in any calendar year performs services in employment as an employee of a State in one or more coverage groups included in an agreement and as an employee of one or more political subdivisions of the State in one or more coverage groups included in an agreement, or as an employee of more than one political subdivision in one or more coverage groups of each such political subdivision included in an agreement; and

(2) Such State provides all of the funds for the payment of that portion of the contributions payable with respect to the remuneration of such individual for services in employment in the coverage groups included under the agreement which is equivalent to the tax which would be imposed by section 3111 of the Internal Revenue Code of 1954 if the services of such individual constituted employment as defined in section 3121 of such code; and

(3) The State is not reimbursed by any political subdivision involved for the payment of such amounts, the agreement may provide (either in the orignal agreement or by a modification thereof) that the amount of the State's liability for contributions attributable to the remuneration of such individual for such services in employment included under the agreement shall be computed as though the individual had performed services in employment in the employ of one political subdivision, and, in accordance with such agreement, the State shall so compute the contributions attributable to the remuneration of such individual.

(b) Identification of employees in multiple employment. Any agreement or modification of an agreement which provides for the computation of contributions in the manner prescribed in paragraph (a) of this section shall identify therein the class or classes of employees with respect to whose wages such manner of computing contributions shall apply. For example, the State may provide that such computation shall apply with respect to the wages paid to all individuals for services performed in positions covered by a particular retirement system, or it may provide that such computation shall apply with re

spect to the wages paid to all individual who are members of any two or mor coverage groups designated in suc agreement or modification. The Sta shall promptly notify the Department the conditions in paragraph (a) of th section are no longer met with respect any class or classes of the employees pre viously identified in the agreement modification thereof. Such notificatio shall identify each class of employe and the date on which such condition cease to be met.

(c) Effective date. The agreement modification thereof shall also provid that such computation of contribution shall apply with respect to wages pa after an effective date specified therei Such date may be the last day of an calendar year but in no event may th contributions be so computed with re spect to wages paid before January 1957, in the case of an agreement modification which is mailed or delivere by other means to the Secretary befor January 1, 1962, or with respect to wage paid before the first day of the year i which the agreement or modification mailed or delivered by other means the Secretary if on or after January 1962.

[26 FR. 12685, Dec. 29, 1961]

§ 404.1223 Manner and time of pay ment of contributions by State.

Federal Reserve Banks are authorize to receive the contributions required be paid to the Secretary of the Treasu by an agreement made pursuant to th Social Security Act, as amended. Th contributions shall be paid in money the Federal Reserve Bank, or any brand thereof, serving the district in whic the State is located, without notice, a the time fixed for filing of its contribu tion returns. (For provisions relating t the filing of contribution returns, se § 404.1255.)

(20 FR. 3330, May 14, 1955]

§ 404.1224 When fractional part of cent may be disregarded.

In payment of contributions to a Fec eral Reserve bank, a State may disregar a fractional part of a cent unless amounts to one-half cent or more, i which case it shall be increased to or cent. Fractional parts of a cent sha not be disregarded in the computation contributions.

[20 F.R. 3330, May 14, 1955]