26 USC 3402 - Income tax collected at source

U.S Code last checked for updates: Nov 22, 2024

§ 3402.

Income tax collected at source

(a)

Requirement of withholding

(1)

In general

Except as otherwise provided in this section, every employer making payment of wages shall deduct and withhold upon such wages a tax determined in accordance with tables or computational procedures prescribed by the Secretary. Any tables or procedures prescribed under this paragraph shall—

(A)

apply with respect to the amount of wages paid during such periods as the Secretary may prescribe, and

(B)

be in such form, and provide for such amounts to be deducted and withheld, as the Secretary determines to be most appropriate to carry out the purposes of this chapter and to reflect the provisions of chapter 1 applicable to such periods.

(2)

Amount of wages

(b)

Percentage method of withholding

(1)

If wages are paid with respect to a period which is not a payroll period, the withholding allowance allowable with respect to each payment of such wages shall be the allowance allowed for a miscellaneous payroll period containing a number of days (including Sundays and holidays) equal to the number of days in the period with respect to which such wages are paid.

(2)

In any case in which wages are paid by an employer without regard to any payroll period or other period, the withholding allowance allowable with respect to each payment of such wages shall be the allowance allowed for a miscellaneous payroll period containing a number of days equal to the number of days (including Sundays and holidays) which have elapsed since the date of the last payment of such wages by such employer during the calendar year, or the date of commencement of employment with such employer during such year, or January 1 of such year, whichever is the later.

(3)

In any case in which the period, or the time described in paragraph (2), in respect of any wages is less than one week, the Secretary, under regulations prescribed by him, may authorize an employer to compute the tax to be deducted and withheld as if the aggregate of the wages paid to the employee during the calendar week were paid for a weekly payroll period.

(4)

In determining the amount to be deducted and withheld under this subsection, the wages may, at the election of the employer, be computed to the nearest dollar.

(c)

Wage bracket withholding

(1)

At the election of the employer with respect to any employee, the employer shall deduct and withhold upon the wages paid to such employee a tax (in lieu of the tax required to be deducted and withheld under subsection (a)) determined in accordance with tables prescribed by the Secretary in accordance with paragraph (6).

(2)

If wages are paid with respect to a period which is not a payroll period, the amount to be deducted and withheld shall be that applicable in the case of a miscellaneous payroll period containing a number of days (including Sundays and holidays) equal to the number of days in the period with respect to which such wages are paid.

(3)

In any case in which wages are paid by an employer without regard to any payroll period or other period, the amount to be deducted and withheld shall be that applicable in the case of a miscellaneous payroll period containing a number of days equal to the number of days (including Sundays and holidays) which have elapsed since the date of the last payment of such wages by such employer during the calendar year, or the date of commencement of employment with such employer during such year, or January 1 of such year, whichever is the later.

(4)

In any case in which the period, or the time described in paragraph (3), in respect of any wages is less than one week, the Secretary, under regulations prescribed by him, may authorize an employer to determine the amount to be deducted and withheld under the tables applicable in the case of a weekly payroll period, in which case the aggregate of the wages paid to the employee during the calendar week shall be considered the weekly wages.

(5)

If the wages exceed the highest wage bracket, in determining the amount to be deducted and withheld under this subsection, the wages may, at the election of the employer, be computed to the nearest dollar.

(6)

In the case of wages paid after December 31, 1969, the amount deducted and withheld under paragraph (1) shall be determined in accordance with tables prescribed by the Secretary. In the tables so prescribed, the amounts set forth as amounts of wages and amounts of income tax to be deducted and withheld shall be computed on the basis of the table for an annual payroll period prescribed pursuant to subsection (a).

(d)

Tax paid by recipient

(e)

Included and excluded wages

(f)

Withholding allowance

(1)

In general

Under rules determined by the Secretary, an employee receiving wages shall on any day be entitled to a withholding allowance determined based on—

(A)

whether the employee is an individual for whom a deduction is allowable with respect to another taxpayer under section 151;

(B)

if the employee is married, whether the employee’s spouse is entitled to an allowance, or would be so entitled if such spouse were an employee receiving wages, under subparagraph (A) or (D), but only if such spouse does not have in effect a withholding allowance certificate claiming such allowance;

(C)

the number of individuals with respect to whom, on the basis of facts existing at the beginning of such day, there may reasonably be expected to be allowable a credit under section 24 (determined after application of subsection (j) thereof) for the taxable year under subtitle A in respect of which amounts deducted and withheld under this chapter in the calendar year in which such day falls are allowed as a credit;

(D)

any additional amounts to which the employee elects to take into account under subsection (m), but only if the employee’s spouse does not have in effect a withholding allowance certificate making such an election;

(E)

the standard deduction allowable to such employee (one-half of such standard deduction in the case of an employee who is married (as determined under section 7703) and whose spouse is an employee receiving wages subject to withholding); and

(F)

whether the employee has withholding allowance certificates in effect with respect to more than 1 employer.

(2)

Allowance certificates

(A)

On commencement of employment

(B)

Change of status

(C)

Change of status which affects next calendar year

(3)

When certificate takes effect

(A)

First certificate furnished

(B)

Furnished to take place of existing certificate

(i)

In general

(ii)

Employer may elect earlier effective date

(iii)

Change of status which affects next year

(4)

Period during which certificate remains in effect

(5)

Form and contents of certificate

(6)

Exemption of certain nonresident aliens

(7)

Allowance where certificate with another employer is in effect

(g)

Overlapping pay periods, and payment by agent or fiduciary

If a payment of wages is made to an employee by an employer—

(1)

with respect to a payroll period or other period, any part of which is included in a payroll period or other period with respect to which wages are also paid to such employee by such employer, or

(2)

without regard to any payroll period or other period, but on or prior to the expiration of a payroll period or other period with respect to which wages are also paid to such employee by such employer, or

(3)

with respect to a period beginning in one and ending in another calendar year, or

(4)

through an agent, fiduciary, or other person who also has the control, receipt, custody, or disposal of, or pays, the wages payable by another employer to such employee,

the manner of withholding and the amount to be deducted and withheld under this chapter shall be determined in accordance with regulations prescribed by the Secretary under which the withholding allowance allowed to the employee in any calendar year shall approximate the withholding allowance allowable with respect to an annual payroll period.

(h)

Alternative methods of computing amount to be withheld

The Secretary may, under regulations prescribed by him, authorize—

(1)

Withholding on basis of average wages

An employer—

(A)

to estimate the wages which will be paid to any employee in any quarter of the calendar year,

(B)

to determine the amount to be deducted and withheld upon each payment of wages to such employee during such quarter as if the appropriate average of the wages so estimated constituted the actual wages paid, and

(C)

to deduct and withhold upon any payment of wages to such employee during such quarter (and, in the case of tips referred to in subsection (k), within 30 days thereafter) such amount as may be necessary to adjust the amount actually deducted and withheld upon the wages of such employee during such quarter to the amount required to be deducted and withheld during such quarter without regard to this subsection.

(2)

Withholding on basis of annualized wages

An employer to determine the amount of tax to be deducted and withheld upon a payment of wages to an employee for a payroll period by—

(A)

multiplying the amount of an employee’s wages for a payroll period by the number of such payroll periods in the calendar year,

(B)

determining the amount of tax which would be required to be deducted and withheld upon the amount determined under subparagraph (A) if such amount constituted the actual wages for the calendar year and the payroll period of the employee were an annual payroll period, and

(C)

dividing the amount of tax determined under subparagraph (B) by the number of payroll periods (described in subparagraph (A)) in the calendar year.

(3)

Withholding on basis of cumulative wages

An employer, in the case of any employee who requests to have the amount of tax to be withheld from his wages computed on the basis of his cumulative wages, to—

(A)

add the amount of the wages to be paid to the employee for the payroll period to the total amount of wages paid by the employer to the employee during the calendar year,

(B)

divide the aggregate amount of wages computed under subparagraph (A) by the number of payroll periods to which such aggregate amount of wages relates,

(C)

compute the total amount of tax that would have been required to be deducted and withheld under subsection (a) if the average amount of wages (as computed under subparagraph (B)) had been paid to the employee for the number of payroll periods to which the aggregate amount of wages (computed under subparagraph (A)) relates,

(D)

determine the excess, if any, of the amount of tax computed under subparagraph (C) over the total amount of tax deducted and withheld by the employer from wages paid to the employee during the calendar year, and

(E)

deduct and withhold upon the payment of wages (referred to in subparagraph (A)) to the employee an amount equal to the excess (if any) computed under subparagraph (D).

(4)

Other methods

(i)

Changes in withholding

(1)

In general

(2)

Treatment as tax

(j)

Noncash remuneration to retail commission salesman

(k)

Tips

(l)

Determination and disclosure of marital status

(1)

Determination of status by employer

(2)

Disclosure of status by employee

(3)

Determination of marital status

For purposes of paragraph (2), an employee shall on any day be considered—

(A)

as not married, if (i) he is legally separated from his spouse under a decree of divorce or separate maintenance, or (ii) either he or his spouse is, or on any preceding day within the calendar year was, a nonresident alien; or

(B)

as married, if (i) his spouse (other than a spouse referred to in subparagraph (A)) died within the portion of his taxable year which precedes such day, or (ii) his spouse died during one of the two taxable years immediately preceding the current taxable year and, on the basis of facts existing at the beginning of such day, the employee reasonably expects, at the close of his taxable year, to be a surviving spouse (as defined in section 2(a)).

(m)

Withholding allowances

Under regulations prescribed by the Secretary, an employee shall be entitled to an additional withholding allowance or additional reductions in withholding under this subsection. In determining the additional withholding allowance or the amount of additional reductions in withholding under this subsection, the employee may take into account (to the extent and in the manner provided by such regulations)—

(1)

estimated itemized deductions allowable under chapter 1 and the estimated deduction allowed under section 199A (other than the deductions referred to in section 151 and other than the deductions required to be taken into account in determining adjusted gross income under section 62(a)),

(2)

estimated tax credits allowable under chapter 1, and

(3)

such additional deductions (including the additional standard deduction under section 63(c)(3) for the aged and blind) and other items as may be specified by the Secretary in regulations.

(n)

Employees incurring no income tax liability

Notwithstanding any other provision of this section, an employer shall not be required to deduct and withhold any tax under this chapter upon a payment of wages to an employee if there is in effect with respect to such payment a withholding allowance certificate (in such form and containing such other information as the Secretary may prescribe) furnished to the employer by the employee certifying that the employee—

(1)

incurred no liability for income tax imposed under subtitle A for his preceding taxable year, and

(2)

anticipates that he will incur no liability for income tax imposed under subtitle A for his current taxable year.

The Secretary shall by regulations provide for the coordination of the provisions of this subsection with the provisions of subsection (f).

(o)

Extension of withholding to certain payments other than wages

(1)

General rule

For purposes of this chapter (and so much of subtitle F as relates to this chapter)—

(A)

any supplemental unemployment compensation benefit paid to an individual,

(B)

any payment of an annuity to an individual, if at the time the payment is made a request that such annuity be subject to withholding under this chapter is in effect, and

(C)

any payment to an individual of sick pay which does not constitute wages (determined without regard to this subsection), if at the time the payment is made a request that such sick pay be subject to withholding under this chapter is in effect,

shall be treated as if it were a payment of wages by an employer to an employee for a payroll period.

(2)

Definitions

(A)

Supplemental unemployment compensation benefits

(B)

Annuity

(C)

Sick pay

For purposes of this subsection, the term “sick pay” means any amount which—

(i)

is paid to an employee pursuant to a plan to which the employer is a party, and

(ii)

constitutes remuneration or a payment in lieu of remuneration for any period during which the employee is temporarily absent from work on account of sickness or personal injuries.

(3)

Amount withheld from annuity payments or sick pay

(4)

Request for withholding

A request that an annuity or any sick pay be subject to withholding under this chapter—

(A)

shall be made by the payee in writing to the person making the payments and shall contain the social security number of the payee,

(B)

shall specify the amount to be deducted and withheld from each full payment, and

(C)

shall take effect—

(i)

in the case of sick pay, with respect to payments made more than 7 days after the date on which such request is furnished to the payor, or

(ii)

in the case of an annuity, at such time (after the date on which such request is furnished to the payor) as the Secretary shall by regulations prescribe.

Such a request may be changed or terminated by furnishing to the person making the payments a written statement of change or termination which shall take effect in the same manner as provided in subparagraph (C). At the election of the payor, any such request (or statement of change or revocation) may take effect earlier than as provided in subparagraph (C).

(5)

Special rule for sick pay paid pursuant to certain collective-bargaining agreements

In the case of any sick pay paid pursuant to a collective-bargaining agreement between employee representatives and one or more employers which contains a provision specifying that this paragraph is to apply to sick pay paid pursuant to such agreement and contains a provision for determining the amount to be deducted and withheld from each payment of such sick pay—

(A)

the requirement of paragraph (1)(C) that a request for withholding be in effect shall not apply, and

(B)

except as provided in subsection (n), the amounts to be deducted and withheld under this chapter shall be determined in accordance with such agreement.

The preceding sentence shall not apply with respect to sick pay paid pursuant to any agreement to any individual unless the social security number of such individual is furnished to the payor and the payor is furnished with such information as is necessary to determine whether the payment is pursuant to the agreement and to determine the amount to be deducted and withheld.

(6)

Coordination with withholding on designated distributions under section 3405

(p)

Voluntary withholding agreements

(1)

Certain Federal payments

(A)

In general

(B)

Amount withheld

(C)

Specified Federal payments

For purposes of this paragraph, the term “specified Federal payment” means—

(i)

any payment of a social security benefit (as defined in section 86(d)),

(ii)

any payment referred to in the second sentence of section 451(d) ¹ which is treated as insurance proceeds,

(iii)

any amount which is includible in gross income under section 77(a), and

(iv)

any other payment made pursuant to Federal law which is specified by the Secretary for purposes of this paragraph.

(D)

Requests for withholding

(2)

Voluntary withholding on unemployment benefits

(3)

Authority for other voluntary withholding

The Secretary is authorized by regulations to provide for withholding—

(A)

from remuneration for services performed by an employee for the employee’s employer which (without regard to this paragraph) does not constitute wages, and

(B)

from any other type of payment with respect to which the Secretary finds that withholding would be appropriate under the provisions of this chapter,

if the employer and employee, or the person making and the person receiving such other type of payment, agree to such withholding. Such agreement shall be in such form and manner as the Secretary may by regulations prescribe. For purposes of this chapter (and so much of subtitle F as relates to this chapter), remuneration or other payments with respect to which such agreement is made shall be treated as if they were wages paid by an employer to an employee to the extent that such remuneration is paid or other payments are made during the period for which the agreement is in effect.

(q)

Extension of withholding to certain gambling winnings

(1)

General rule

(2)

Exemption where tax otherwise withheld

(3)

Winnings which are subject to withholding

For purposes of this subsection, the term “winnings which are subject to withholding” means proceeds from a wager determined in accordance with the following:

(A)

In general

(B)

State-conducted lotteries

(C)

Sweepstakes, wagering pools, certain parimutuel pools, jai alai, and lotteries

Proceeds of more than $5,000 from—

(i)

a wager placed in a sweepstakes, wagering pool, or lottery (other than a wager described in subparagraph (B)), or

(ii)

a wagering transaction in a parimutuel pool with respect to horse races, dog races, or jai alai if the amount of such proceeds is at least 300 times as large as the amount wagered.

(4)

Rules for determining proceeds from a wager

For purposes of this subsection—

(A)

proceeds from a wager shall be determined by reducing the amount received by the amount of the wager, and

(B)

proceeds which are not money shall be taken into account at their fair market value.

(5)

Exemption for bingo, keno, and slot machines

(6)

Statement by recipient

(7)

Coordination with other sections

(r)

Extension of withholding to certain taxable payments of Indian casino profits

(1)

In general

(2)

Exception

The tax imposed by paragraph (1) shall not apply to any payment to the extent that the payment, when annualized, does not exceed an amount equal to the sum of—

(A)

the basic standard deduction (as defined in section 63(c)) for an individual to whom section 63(c)(2)(C) ¹ applies, and

(B)

the exemption amount (as defined in section 151(d)).

(3)

Annualized tax

For purposes of paragraph (1), the term “annualized tax” means, with respect to any payment, the amount of tax which would be imposed by section 1(c) ¹ (determined without regard to any rate of tax in excess of the fourth lowest rate of tax applicable under section 1(c) ¹ ) on an amount of taxable income equal to the excess of—

(A)

the annualized amount of such payment, over

(B)

the amount determined under paragraph (2).

(4)

Classes of gaming activities, etc.

(5)

Annualization

(6)

Alternate withholding procedures

(7)

Coordination with other sections

(s)

Exemption from withholding for any vehicle fringe benefit

(1)

Employer election not to withhold

(2)

Employer must furnish W–2

(3)

Vehicle fringe benefit

For purposes of this subsection, the term “vehicle fringe benefit” means any fringe benefit—

(A)

which constitutes wages (as defined in section 3401), and

(B)

which consists of providing a highway motor vehicle for the use of the employee.

(t)

Rate of withholding for certain stock

In the case of any qualified stock (as defined in section 83(i)(2)) with respect to which an election is made under section 83(i)—

(1)

the rate of tax under subsection (a) shall not be less than the maximum rate of tax in effect under section 1, and

(2)

such stock shall be treated for purposes of section 3501(b) in the same manner as a non-cash fringe benefit.

(Aug. 16, 1954, ch. 736, 68A Stat. 457; Aug. 9, 1955, ch. 666, § 2, 69 Stat. 605; Pub. L. 87–256, § 110(g)(2), Sept. 21, 1961, 75 Stat. 537; Pub. L. 88–272, title III, § 302(a), (b), Feb. 26, 1964, 78 Stat. 140; Pub. L. 89–97, title III, § 313(d)(3)–(5), July 30, 1965, 79 Stat. 384; Pub. L. 89–212, § 2(c), Sept. 29, 1965, 79 Stat. 859; Pub. L. 89–368, title I, § 101(a)–(e)(3), Mar. 15, 1966, 80 Stat. 38–61; Pub. L. 90–364, title I, § 102(c), June 28, 1968, 82 Stat. 256; Pub. L. 91–36, § 2(a), June 30, 1969, 83 Stat. 42; Pub. L. 91–53, § 6(a), Aug. 7, 1969, 83 Stat. 96; Pub. L. 91–172, title VIII, § 805(a)–(e), (f)(1), (g), Dec. 30, 1969, 83 Stat. 686, 704–708; Pub. L. 92–178, title II, § 208(a), (b)(1), (c)–(h)(1), Dec. 10, 1971, 85 Stat. 512–517; Pub. L. 94–12, title II, §§ 202(b), 205, Mar. 29, 1975, 89 Stat. 29, 32; Pub. L. 94–164, §§ 2(b)(2), 5(a)(1), Dec. 23, 1975, 89 Stat. 971, 975; Pub. L. 94–331, § 3(a)(1), June 30, 1976, 90 Stat. 782; Pub. L. 94–396, § 2(a)(1), Sept. 3, 1976, 90 Stat. 1201; Pub. L. 94–414, § 3(a)(1), Sept. 17, 1976, 90 Stat. 1273; Pub. L. 94–455, title IV, § 401(d), title V, §§ 502(b), 504(c)(3), title XII, § 1207(d), title XIX, §§ 1903(a)(17), 1906(b)(13)(A), Oct. 4, 1976, 90 Stat. 1557, 1559, 1566, 1705, 1810, 1834; Pub. L. 95–30, title I, § 105, title IV, § 405(a), May 23, 1977, 91 Stat. 140, 156; Pub. L. 95–600, title I, §§ 101(e), 102(c), title VI, § 601(b)(2), Nov. 6, 1978, 92 Stat. 2770, 2771, 2896; Pub. L. 96–601, § 4(a)–(d), Dec. 24, 1980, 94 Stat. 3496, 3497; Pub. L. 97–34, title I, § 101(e), Aug. 13, 1981, 95 Stat. 184; Pub. L. 97–248, title III, §§ 317(a), 334(d), Sept. 3, 1982, 96 Stat. 607, 627; Pub. L. 98–67, title I, § 104(d)(3), Aug. 5, 1983, 97 Stat. 380; Pub. L. 99–44, § 3, May 24, 1985, 99 Stat. 77; Pub. L. 99–514, title I, § 104(b)(15), title XIII, §§ 1301(j)(8), 1303(b)(4), title XV, § 1581(b), Oct. 22, 1986, 100 Stat. 2106, 2658, 2766; Pub. L. 100–203, title X, § 10302(a), Dec. 22, 1987, 101 Stat. 1330–429; Pub. L. 100–647, title I, § 1003(a)(2), Nov. 10, 1988, 102 Stat. 3382; Pub. L. 101–508, title XI, § 11801(a)(41), Nov. 5, 1990,

cite as: 26 USC 3402

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