PUBLIC LAW 103-66 —AUG. 10, 1993 107 STAT. 569 'nSEC. 45B. CREDIT FOR PORTION OF EMPLOYER SOCIAL SECURITY TAXES PAID WITH RESPECT TO EMPLOYEE CASH TIP& "(a) GENERAL RULE.—For purposes of section 38, 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 durine 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 3111 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 piirsuant to section 3121(q), 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)(l) of the Fair Labor Standards Act of 1938 (determined without regard to section 3(m) of such Act). "(2) ONLY TIPS RECEIVED AT FOOD AND BEVERAGE ESTABLISHMENTS TAKEN INTO ACCOUNT.— In applying paragraph (1), there shall be taken into account only tips received from customers in connection with the provision of food or beverages for consumption on the premises of an establishment with respect to which the tipping of employees 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. —T his section shall not apply to a taxpayer for any taxable year if such taxpayer elects to nave this section not apply for such taxable year." (b) CREDIT TO BE PART OF GENERAL BUSINESS CREDIT. — (1) IN GENERAL.— Subsection (b) of section 38 (relating to current year business credit) is amended by striking "plus" at the end of paragraph (9), by striking the period at the end of paragraph (10) and inserting ", plus", and by adding at the end the following new paragraph: "(11) the employer social security credit determined under section 45B(a)." (2) LIMITATION ON CARRYBACKS.—Subsection (d) of section 39 (relating to transitional rules) is sunended by adding at the end the following new paragraph: "(6) No CARRYBACK OF SECTION 46 CREDIT BEFORE ENACT- MENT. — No portion of the unused business credit for any taxable year which is attributable to the employer social security credit determined under section 45B may be carried back to a taxable year ending before the date of the enactment of section 45B." (c) CLERICAL AMENDMENT. —The table of sections for subpart D of part IV of subchapter A of chapter 1 is amended by adding at the end the following new item: 'ISec. 45B. Credit for portion of employer social security taxes pcud with respect to employee cash tipe." (d) EFFECTIVE DATE. —The amendments made by this section 26 USC 38 note. shall apply with respect to taxes padd after December 31, 1993.
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