Pub. 957, Reporting Back Pay and Special Wage Payments to the Social Security Administration |
2007 Tax Year |
Publication 957 - Main Contents
Back pay is pay received in a tax year(s) for actual or deemed employment in an earlier tax year(s). For social security coverage
and benefit
purposes, all back pay, whether or not under a statute, is wages if it is payment for covered employment. Damages for personal
injury, interest,
penalties, and legal fees included with back pay awards, are not wages. Report all back pay. However, the tax year(s) for
which back pay is credited
as wages for social security purposes is different if it is awarded under a statute.
Back pay awarded under a statute is a payment by an employer pursuant to an award, determination or agreement approved or
sanctioned by a court or
government agency responsible for enforcing a federal or state statute that protects an employee's right to employment or
wages.
Examples of pertinent statutes include:
-
Age Discrimination in Employment Act,
-
Americans with Disabilities Act,
-
Equal Pay Act,
-
Fair Labor Standards Act,
-
National Labor Relations Act,
-
State minimum wage laws, and
-
State statutes that protect rights to employment and wages.
Payments based on laws that have a similar effect to those listed above also may qualify as payments made under a statute.
Back pay awards, under some of the statutes listed above, may be compensation for personal injury and not pay for employment.
Such awards are not
wages for social security coverage purposes.
If a court-approved or sanctioned settlement agreement states that the agreement is not an admission of discrimination, liability,
or act of
wrongdoing, the statement does not change the nature of a back pay award. The payments made in such a settlement may still
be back pay and wages under
the rules discussed here.
A payment for back wages negotiated between an employer and employee without an award, determination or sanction by a court
or government agency is
back pay. However, it is not made under a statute. Delayed wage payments and retroactive pay increases resulting from union
negotiation or payments
under local ordinances or regulations are back pay and are wages. However, they are not payments made under a statute.
If you are uncertain whether the back pay award was under a qualified statute, you may need to contact your personnel department
or legal counsel
or the attorney who filed the suit.
Employers should use Form W-2, Wage and Tax Statement, or electronic wage reports to report back pay as wages in the year
they actually pay the
employee. Beginning in calendar year 2006, SSA will no longer accept reports on tapes and cartridges and will not accept diskette
reports beginning in
calendar year 2007.
Example.
In 2003, Terry Morris earned wages of $50,000. In the same year, she received $100,000 in settlement of a back pay case against
her employer that
covered the periods January 1998 through December 2002. Her employer properly reflected social security wages of $87,000 and
Medicare wages of
$150,000 on her 2003 Form W-2.
However, if an employer did not include back pay wages on a previously filed form W-2, magnetic media, or electronically filed
wage report, the
employer should prepare a wage correction report, Form W-2c, Corrected Wage and Tax Statement, or electronically filed report,
to add the back pay
award to the wages previously reported.
Example.
If, in the above example, Terry Morris' employer had prepared her 2003 Form W-2 reporting social security and Medicare wages
of only $50,000 each,
the employer would have to correct that report. A Form W-2c correcting the 2003 Form W-2 would show previously reported social
security and Medicare
wages of $50,000 and the correct amount of $87,000 for social security and $150,000 for Medicare.
The Internal Revenue Service (IRS) and the SSA consider back pay awards to be wages. However, for income tax purposes, the
IRS treats all back pay
as wages in the year paid.
If a back pay award is not made under a statute, the SSA credits back pay as wages in the year paid. However, when awarded,
the SSA credits back
pay awarded under a statute to the year(s) it should have been paid.
SSA treatment of back pay under a statute.
Under the law, the SSA credits back pay awarded under a statute to an individual's earnings record in the period(s)
the wages should or would have
been paid. This is important because wages not credited to the proper year may result in lower social security benefits or
failure to meet the
requirements for benefits.
However, back pay under statute payments will remain posted to the employee's social security earnings record in the
year reported on Form W-2 (or
Form W-2c) unless the employer or employee notifies the SSA (in a separate, special report) of the back pay under a statute
payment. Then, the SSA can
allocate the statutory back pay to the appropriate periods.
The law does not require that employers notify the SSA of the different period(s) involved in a back pay under statute case.
If employers do notify
the SSA of this payment, they should prepare a special report (with the information noted below) and send it to:
Social Security Administration
Office of Central Operations
Metro West
Attn: Back Pay (DERO) Analyst Staff
300 North Greene Street
Baltimore, Maryland 21202
Be sure to send this special report to the above address because the SSA handles it separately from other reports.
If you paid the back pay award in the same tax year to which it applies, report the wages on that year's Form W-2. No further
action is necessary.
Example.
In 2003, Judy Wilson received a salary of $30,000 and a back pay under statute award of $2,000 for the period January through
June 2003. Her
employer properly reported wages of $32,000 for social security and Medicare on her 2003 Form W-2. No further action is necessary.
Information the SSA needs to properly credit back pay under a statute (special report).
You should send the special report to the SSA when or after you submit the Form W-2 (on paper or electronically) to
the SSA for the year you pay
the statutory back pay to the employee. There is no statute of limitations on the filing of the special report to enable the
SSA to allocate the
wages. The SSA needs the following information:
*Note.
For periods before January 1, 1978 (before January 1, 1981, for state and local government employers covered by a
section 218 agreement), show the
wage amounts for each calendar quarter ending March 31, June 30, September 30 and December 31. For all tax years, show and
identify the social
security and/or Medicare Qualified Government Employment (MQGE) wages (where applicable) separately. MQGE is applicable to
federal employees beginning
in 1983, and for certain state and local government employees beginning in 1986. For tax years 1991 and later, list the social
security and Medicare
wages separately. If you originally reported the individual's wages under an establishment or payroll record unit number,
show the amount of wages to
remain in the award year for that number and furnish that number to the SSA along with the EIN.
Format for Report to the SSA
Use the format shown in Table 1 on page 3 to send the SSA the information needed to properly credit back pay under a statute.
In a cover letter, include the following information:
Under certain circumstances, back pay may be a special wage payment and excluded from wages counted under the social security
earnings test. If you
pay back pay to an employee age 61 or older, report it to the SSA in accordance with this section. Read Special Wage Payments
on page 5 for
additional reporting instructions.
If you have questions concerning back pay under a statute, contact your local social security office.
Exception.
If you are a state or local government employer who was covered by an agreement under Section 218 of the Social Security
Act before January 1,
1987, and you paid a back pay award before January 1, 1987, which you did not report to the SSA, contact your state Social
Security Administrator's
office.
Table 1. Format for Report (Under Covering Letter) to Request SSA to Allocate Back Pay Under Statute Wages
Employer's EIN: xx-xxxxxxx |
Tax Year in Which Award Payment Was Paid: 2003 |
(1)
SSN and Employee Name |
(2)
1
Award Amount and Period(s) |
(3)
2,3
Other Soc. Sec./Med. Wages Paid In Award Year |
(4)
3
Allocation |
|
|
Soc. Sec. |
Med./MQGE |
Year |
Soc. Sec. |
Med./MQGE |
xxx-xx-xxxx
HELEN T. SMITH
|
$100,000
1/2000- 12/2003
|
$40,000
|
$40,000
|
2000
2001
2002
2003
|
$20,000
25,000
27,000
28,000
|
$20,000
25,000
27,000
28,000
|
xxx-xx-xxxx
SAM W. EVANS
|
30,000
7/89-12/91
|
-0-
|
-0-
|
1989
1990
1991
|
|
6,000
12,000
12,000
|
xxx-xx-xxxx
ROLAND S. ADAMS
|
15,000
7/80-12/81
|
-0-
|
-0-
|
9/80
12/80
1981
|
3,500
3,500
8,000
|
|
1Exclude amounts specifically designated as damages, penalties, etc.
2Exclude the amount of back pay, if any, included in that amount.
3For periods before January 1, 1978, (and for state and local government (Section 218) employers before January 1, 1981), show
the wage
amounts by calendar quarters. The social security and/or Medicare Qualified Government Employment (MQGE) wages (where applicable)
must be shown
separately FOR ALL YEARS. (Wages subject ONLY to MQGE would be shown in the Medicare/MQGE column; no wages would be shown
in the Soc. Sec. column.)
For tax years 1991 and later, the social security and Medicare wages must be listed separately.
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Explanation of examples. |
Helen T. Smith–The back pay award, excluding interest, was $100,000 for the periods
1/2000-12/2003. In 2003, this employee was also paid $40,000 in other wages. (Her Form W-2 for 2003 reported $87,000 for social
security and $140,000
for Medicare. The SSA allocation will result in posted wages of $68,000 for social security and $68,000 for Medicare for 2003.)
|
Sam W. Evans–The back pay award was $30,000 for the periods 7/89-12/91. This employee
was hired in 1989 and was subject to MQGE only. He was no longer employed by this governmental employer in 2003. (His Form
W-2 for 2003 reported
$30,000 for social security and $30,000 for Medicare. After the SSA allocation, he will not have any posted wages for 2003.)
|
Roland S. Adams–The back pay award was $15,000 for the periods 7/80-12/81. He was no longer
employed by this state and local government (Section 218) employer in 2003. (His Form W-2 for 2003 reported $15,000 for social
security and $15,000
for Medicare; after the SSA allocation, he will not have any posted wages for 2003.)
|
If the state Social Security Administrator's office needs more information they can contact the SSA at the following address:
Social Security Administration
Office of Income Security Programs
Office of Earnings & Information Exchange
6401 Security Boulevard RRCC #1910
Baltimore, MD 21235
A special wage payment is an amount paid by an employer to an employee (or former employee) for services performed in a prior
year. Employers
should report to the SSA special wage payments made to employees and former employees who are recipients of social security
retirement benefits.
Special wage payments made to a retired employee receiving social security or to an employee who continues to work while receiving
social security
benefits may reduce the benefits the individual receives if not reported to the SSA. Special wage payments may include (but
are not limited to):
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Accumulated sick and vacation pay,
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Back pay,
-
Bonuses,
-
Deferred compensation,
-
Payments because of retirement,
-
Sales commissions,
-
Severance pay, and
-
Stock options.
Note.
Payments made after retirement that are part of the normal payroll cycle should not be routinely reported as special wage
payments.
Earnings Test.
Benefits paid to a social security beneficiary under full retirement age may be reduced if the beneficiary continues
to work. The SSA uses the
information in boxes 1, 3, and 5 of Form W-2 to determine the beneficiary's current year earnings. Special wage payments,
which are for services
performed in a prior year, will increase the current year earnings on Form W-2, which also may result in a reduction in the
beneficiary's benefits. If
a benefit is reduced because of a special wage payment, the beneficiary must get documentation from the employer before the
SSA can restore the
deducted portion. Therefore, employer reports of special wage payments help prevent incorrect benefit reductions.
Reporting Special Wage Payments
Employers must report special wage payments for income tax purposes and social security and Medicare taxes in the year received.
Report income,
social security, and/or Medicare taxes for special wage payments on Form W-2.
See below for reporting nonqualified deferred compensation plan deferrals and payments on Form W-2.
In addition, report to the SSA special wage payments made during the reporting year to retired employees and employees who
continue to work while
receiving social security benefits. Submit reports after the close of the tax year. To avoid delays in processing, submit
reports in time to reach the
SSA by April 1. Use one of the following reporting methods.
Magnetic media.
Special wage payments may be reported on magnetic computer tape or 3480 cartridges. The SSA does not accept special
wage payment reports on
diskettes. Use the specifications and record layout shown in Table 2 on page 10. Include a transmittal using the format shown
in Table 3 on page 11
for each tape or cartridge submission. Mail magnetic media reports to the SSA at the address shown in Table 3.
Tapes or cartridges not meeting the specifications in Table 2 will be rejected. All data must be in capital letters.
“ Year” refers to the year
the payment was reported as wages on Form W-2. Do not use punctuation (periods and/or commas) in the name field.
Paper listing.
A paper listing can be used to report special wage payments to several employees. Use the format shown in Table 4
on page 12. Submit paper listings
to the local SSA office nearest your place of business.
Form SSA-131.
Use Form SSA-131 (see page 6) to report special wage payments made to an employee. Also, use this form to report nonqualified
deferred compensation
and section 457 plan deferrals and payments that could not be reported in box 11 of Form W-2.
Instructions for Form SSA–131
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EMPLOYER INSTRUCTIONS FOR COMPLETING SPECIAL WAGE PAYMENT FORM
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1.
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Provide the EIN that was used or will be used to report the employee's wages on the Form W-2.
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2.
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Enter the date the employee retired. Enter “Not Retired” if the employee has not retired.
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3.
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Enter the date that the employee last performed services; was not expected to return to work; and was not subject to recall
to render
additional services. This date should be the same as or earlier than the date in item “2”. Enter “Not Retired” if the employee has not
retired.
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4.
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Enter the wages that were paid to the employee in the tax year that were for services that were performed in years prior to
the tax year or
that were paid on account of retirement.
Examples (not all inclusive) of payments to be included:
-
Payments in lieu of vacation that were earned in a year prior to the tax year.
-
Accumulated sick payments which were paid in a lump sum based on “retirement” as the sole condition of payment.
-
Accumulated sick payments paid at or after the date in item 3, which were earned in a year prior to the tax year.
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Payments “on account of retirement”–dismissal, severance or termination pay paid because of retirement.
-
Bonuses which are paid pursuant to a prior contract, agreement or promise causing the employee to expect such payments regularly;
or
announced to induce the employee to work more steadily, rapidly or efficiently or to remain with the employer.
-
Stock Options.
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Do not include in item “4” payments:
-
For annual, sick, holiday, or vacation pay if used (absence from work) prior to the date of retirement (earlier of items “2” or
“3”).
-
That were reported or will be reported under “Nonqualified Plans” on the Form W-2.
-
That were deducted from the employee's wages and paid to a deferred compensation plan (e.g., 401k).
-
Employees health and dental plan benefits (non-covered/non-taxable for Social Security Wages).
-
Bonuses earned and paid in the tax year.
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5.
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Check whether payments listed in item 4 will be made for years after the tax year. If yes, please show the amounts and years
in which these
will be paid, if know.
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6.
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Nonqualified deferred compensation and section 457 plans only. If you were unable to report nonqualified deferred
compensation or section 457 plan payments and deferrals (contributions) on Form W-2 because both payments and deferrals occurred
during the year, show
the amount of wages earned by the employee during the tax year. Generally, the wages earned will be the compensation reported in block 1 of
Form W-2 less payments from a nonqualified deferred compensation (or 457) plan, but including any amounts deferred under the
plan during the tax year
(See IRS Publication 957).
|
Paperwork/Privacy Act Notice: This report is authorized by regulation 20 CFR 404.702. The
information that you provide will be used in making a determination regarding the amount of Social Security benefits payable
to the above named
individual. While your response is voluntary, if you do not respond we may not be able to make a correct determination regarding
the amount of Social
Security benefits payable to the above named individual for the year in question.
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We may also use the information you give us when we match records by computer. Matching programs compare our
records with those of other Federal, State, or local government agencies. Many agencies may use matching programs to find
or prove that a person
qualifies for benefits paid by the Federal Government. The law allows us to do this even if you do not agree to it.
Explanations about these and other reasons why information you provide us may be used or given out are available in Social
Security Offices. If you
want to learn more about this, contact any Social Security Office.
|
The Paperwork Reduction Act : This information collection meets the clearance requirements of 44
U.S.C. §3507, as amended by Section 2 of the Paperwork Reduction Act of 1995. You are not required to answer these questions
unless we display a
valid Office of Management and Budget control number. We estimate that it will take you about 20 minutes to read the instructions,
gather the
necessary facts, and answer the questions.
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Form SSA-131 (8-2001) EF (06-2002)
|
Submit Form SSA-131 to the SSA office nearest your place of business. Or, the employee can submit it to the SSA office
handling the claim. You or
the employee must submit this form before the SSA can exclude the special wage payments for purposes of the earnings test.
If reporting on more than
one employee, complete a separate Form SSA-131 for each employee or use the paper listing format (except for reporting nonqualified
and section 457
plan deferrals and payments), in Table 4.
Do not report payments from nonqualified deferred compensation or section 457 plans that were reported in box 11 of Form W-2.
Use Form SSA-131 if
deferrals to and payments from nonqualified or section 457 plans occurred during the tax year.
Reporting Nonstatutory (Nonqualified) Stock Options as Special Wage Payments
A nonstatutory (nonqualified) option to purchase stock which is exercised in a year after the year in which the option was
earned is a special wage
payment. It should not count for the social security earnings test. Nonstatutory (nonqualified) options exercised as special
wage payments by retired
employees or employees who continue to work while receiving social security benefits should be reported by employers using
the above reporting
methods.
Nonqualified Deferred Compensation and Section 457 Plans
A nonqualified deferred compensation plan is a plan or arrangement established and maintained by an employer for one or more
of its employees that
provides for the deferral of compensation, but does not meet the requirements for a tax-qualified deferred compensation plan.
For social security and
Medicare purposes, deferred compensation plans for employees of state and local governments (section 457 plans) are treated
the same as nonqualified
plans. Nonqualified and section 457 plans are reported differently than other special wage payments. See Reporting Amounts Deferred to
Nonqualified and Section 457 Plans below for specific instructions.
Reporting Amounts Deferred to Nonqualified and Section 457 Plans
Generally, when the related services are performed, nonqualified deferred compensation is subject to social security and Medicare
tax when
deferred. However, if nonqualified and section 457 plans contain provisions that delay the employee's right to receive payments
from the plan, a
period of substantial risk of forfeiture exists. The plans' deferrals, or contributions, are not subject to social security
and Medicare taxes until
the period of substantial risk of forfeiture ends.
No risk of forfeiture.
If there is no risk of forfeiture, report wage amounts deferred to a nonqualified deferred compensation or section
457 plan in box 3 (up to the
wage base maximum) and/or box 5 of Form W-2.
Example.
Company X's nonqualified deferred compensation plan allows the deferral of up to $20,000 of employee salaries each year. The
plan has no risk of
forfeiture. Employee A defers $20,000 to the plan from a total salary of $200,000.
Risk of forfeiture lapses before retirement.
If the substantial risk of forfeiture lapses before the employee retires, report all past contributions to the plan
(or the value of the plan),
including accumulated earned interest, in box 3 (up to the wage base maximum) and/or box 5 of Form W-2. The accumulated deferrals
are reported along
with any other social security and Medicare wages earned during the year.
Report in box 11 of Form W-2 the amount of deferrals, including any accumulated interest, that became taxable for
social security and Medicare
taxes during the year (but were for prior year services) because the deferred amounts were no longer subject to a substantial
risk of forfeiture. If
the employee continues working, future deferrals are social security and Medicare when they are earned.
Do not include in box 11 deferrals that are included in boxes 3 and/or 5 and that are for current year services.
Risk of forfeiture lapses at retirement.
When an employee's right to a payment is contingent upon working until retirement, report all past contributions to
the plan (or the value of the
plan), including accumulated earned interest, as social security and/or Medicare wages in the year of retirement. Add the
amount to other wages paid
in that year, and enter in box 3 (up to the wage base maximum) and/or box 5 of Form W-2.
Report in box 11 of Form W-2 the amount of deferrals, including any accumulated interest, that became taxable for
social security and Medicare
taxes during the year (but were for prior year services) because the deferred amounts were no longer subject to a substantial
risk of forfeiture.
Do not include in box 11 deferrals that are included in boxes 3 and/or 5 and that are for current year services.
Example—risk of forfeiture.
At the end of the risk-of-forfeiture period for Company Y's nonqualified deferred compensation plan, employee B's accumulated
deferrals, plus
interest earned by the plan, are $120,000, not including B's $20,000 deferral for this year. B's wages, including this year's
deferred amount, are
$80,000.
Reporting Payments From Nonqualified and Nongovernmental Section 457 Plans
When an employee or former employee retires and begins receiving payments (distributions) from a nonqualified or nongovernmental
section 457 plan,
report the payments in boxes 1 and 11 of Form W-2. Report payments (distributions) from a governmental section 457 plan on Form 1099-R,
Distributions from Pensions, Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts, etc.
Example.
Employee D retired from the XYZ company and began receiving social security benefits. XYZ paid D a $12,000 bonus upon retirement
for sales made in
a prior year, and D received $25,000 in payments from XYZ's nonqualified deferred compensation plan. In addition, D agreed
to continue performing
services for XYZ, but on a part-time basis for wages of $15,000 per year. D made no deferrals to the nonqualified plan this
year.
Reporting Payments and Deferrals in the Same Year
Do not complete box 11 when payments (distributions) are made from a nonqualified plan and deferrals are reported in boxes
3 and/or 5 of Form W-2
(including current year deferrals). Report to the SSA on Form SSA-131 the total amount the employee earned during the tax
year. Normally, the amount
earned is the amount reported in box 1 of Form W-2 less payments from a nonqualified (section 457) plan, but including any
amounts deferred under the
plan during the tax year. See Form SSA-131 and its instructions on pages 6 and 7.
Example.
Employee K retired this year from Company XYZ and began receiving social security benefits. During the year he earned wages
of $50,000 and deferred
$35,000 of the wages into the company's nonqualified deferred compensation plan. K also received $75,000 in payments from
the company's nonqualified
plan.
Form W-2 Completion
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Special Wage Payment
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$75,000
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Wages
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$50,000
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Minus: deferral
|
35,000
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Total reported in Box 1 |
$90,000
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|
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Wages including deferral reported in
Boxes 3 and 5 |
$50,000
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Leave Box 11 blank. File Form SSA-131
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-0-
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Form SSA-131 Completion
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Amount from Box 1 of Form W-2
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$90,000
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Minus: payments from a nonqualified plan
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75,000
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Plus: amounts deferred into the plan during the year
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35,000
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Total wages earned for purposes of Form SSA-131 (item 6)
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$50,000
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Table 2. Specifications for Magnetic Media Reporting of Special Wage Payments
FILE NAME: SOSWAP.PXXXXXXX
1 (XXXXXXX
1=FIRST 7 LETTERS OF COMPANY NAME)
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A.
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DENSITY
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:
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6250 bpi
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B.
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LABEL
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:
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SL
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C.
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RECORD FORMAT
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:
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FB
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D.
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RECORD LENGTH
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:
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55
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E.
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BLOCK SIZE
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:
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23430
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F.
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CODING SCHEME
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:
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EBCIDIC
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DATA RECORD
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SEQ
#
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TYP
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FLD
SIZE
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BEG
POS
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END
POS
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DATA ELEMENT NAME
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COMMENTS
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|
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1
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N
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9
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1
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5
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SOCIAL SECURITY NUMBER
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PACKED
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2
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A
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15
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6
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20
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SURNAME
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3
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A
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11
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21
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31
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FIRST NAME
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4
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A
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1
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32
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32
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MID INITIAL
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5
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N
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9
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37
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37
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EMPLOYER IDENTIFICATION NUMBER
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PACKED
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6
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N
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11
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43
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43
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AMOUNT OF SWP S9 (09) v99
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PACKED AND SIGNED
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7
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N
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2
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44
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45
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CENTURY
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46
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47
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YEAR
|
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8
|
AN
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4
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48
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51
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ESTABLISHMENT CODE
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9
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AN
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6
|
52
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55
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FILLER
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PLEASE PREPARE AN EXTERNAL LABEL WITH THE FOLLOWING INFORMATION:
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SPECIAL WAGE PAYMENTS — TYPE: SWP
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DSN:SOSWAP.PXXXXXXX
1 |
Payment Year
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EIN: NNNNNNNNN
2 |
Reel
of
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Company Name:
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Record Count:
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Return Tape? YN
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Block Size
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LRECL
Density
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Vol Ser #
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Label? SL/NL
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1 XXXXXXX = FIRST SEVEN LETTERS OF THE COMPANY NAME
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2 NNNNNNNNN = THE COMPANY'S EMPLOYER IDENTIFICATION NUMBER
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Mail your tapes/cartridges to: |
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Social Security Administration |
Please include a transmittal for each tape and/or cartridge submission. |
Tape Operations Section |
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Attn: Outside Agency |
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National Computer Center |
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6201 Security Boulevard |
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Baltimore, Maryland 21235 |
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Previous | Index
Publications Index | 2007 Tax Help Archives | Tax Help Archives Main | Home
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