§ 45B Credit for portion of employer social security taxes paid with respect to employee cash tips
(a) General rule
For purposes of section , the employer social security credit determined under this section for the taxable year is an amount equal to the excess employer social security tax paid or incurred by the taxpayer during the taxable year.
(b) Excess employer social security tax
For purposes of this section—
(1) In general
The term “excess employer social security tax” means any tax paid by an employer under section with respect to tips received by an employee during any month, to the extent such tips—
(A) are deemed to have been paid by the employer to the employee pursuant to section (without regard to whether such tips are reported under section ), and
(B) exceed the amount by which the wages (excluding tips) paid by the employer to the employee during such month are less than the total amount which would be payable (with respect to such employment) at the minimum wage rate applicable to such individual under section 6(a)(1) of the Fair Labor Standards Act of 1938 (determined without regard to section of such Act, and in the case of food or beverage establishments, as in effect on January 1, 2007).
(2) Application only to certain lines of business
In applying paragraph (1) there shall be taken into account only tips received from customers or clients in connection with the following services:
(A) The providing, delivering, or serving of food or beverages for consumption, if the tipping of employees delivering or serving food or beverages by customers is customary.
(c) Denial of double benefit
No deduction shall be allowed under this chapter for any amount taken into account in determining the credit under this section.
(d) Election not to claim credit
This section shall not apply to a taxpayer for any taxable year if such taxpayer elects to have this section not apply for such taxable year.
(Added Pub. L. 103–66, title XIII, § 13443(a), Aug. 10, 1993, 107 Stat. 568; amended Pub. L. 104–188, title I, § 1112(a)(1), (b)(1), Aug. 20, 1996, 110 Stat. 1759; Pub. L. 110–28, title VIII, § 8213(a), May 25, 2007, 121 Stat. 193; Pub. L. 119–21, title VII, § 70201(e), July 4, 2025, 139 Stat. 171.)
Operative text only. Editorial notes, amendment history, and effective dates: official OLRC text of § 45B