SSR 72-30: SECTIONS 205(c)(5)(H) and 213(a)(2)(ii) (42 U.S.C. 405(c)(5)(H) and 413(a)(2)(ii)). -- CORRECTION OF EARNINGS RECORD AFTER EXPIRATION OF TIME LIMITATION -- MAXIMUM EARNINGS

20 CFR 404.806

SSR 72-30

Where a worker, paid compensation in excess of $4,800 in each of four calendar quarters of 1959 (in which year $4,800 was the maximum amount of earnings creditable), was credited with only $4,200 reported to his earnings record for that year, all in the first quarter, held, section 205(c)(5)(H) of Social Security Act allows posting of $600 to second quarter of that year for which the Secretary's records for such worker contain no entry, and thereby the third and fourth quarters of 1959 would be so-called "gift" quarters of coverage under section 213(a)(2)(ii) of the Act.

R, the worker, was employed and paid compensation of $15,000 in the first calendar quarter of 1959 and $5,000 in each of the remaining three quarters of that year. However, only $4,200 was reported by his employer, all of which was credited to his earnings record for the first quarter of 1959. No additional wages were reported for the last three quarters of the year. The maximum amount of earnings creditable in 1959 was $4,800.

In 1971 primary evidence of compensation for R was submitted to the Social Security Administration which verified his earnings for 1959 as shown above. The issue thus to be resolved is whether any part of the additional compensation paid to R can now be credited as wages to his earnings record for 1959 under section 205(c)(5)(H) of the Social Security Act.

Section 205(c)(5) of the Act provides that after three years, three months, and fifteen days following any year, the Secretary may change an individual's earnings record for that year

* * * (H) to include wages paid during any period in such year to an individual by an employer if there is an absence of an entry in the Secretary's records of wages having been paid by such employer to such individual in such period; * * *.

Section 209(a) provides that the term "wages" shall not include

* * * (3) that part of remuneration which, after remuneration (other than remuneration referred to in the succeeding subsections of this section) equal to $4,800 with respect to employment has been paid to an individual during any calendar year after 1958 and prior to 1966, is paid to such individual during such calendar year; * * *.

In addition, section 205(c)(4) provides that after three years, three months, and fifteen days following any year:

(A) the Secretary's records (with changes, if any, made pursuant to paragraph (5)) of the amounts of wages paid to * * * an individual during any period in such year shall be conclusive for the purposes of this title;

(B) the absence of an entry in the Secretary's records as to the wages alleged to have been paid by an employer to an individual during any period in such year shall be presumptive evidence for the purposes of this title that no such alleged wages were paid to such individual in such period; * * *.

Since the Secretary's records indicate that R was paid wages of $4,200 in the first quarter of 1959, there is a conclusive presumption that he was paid that amount and no more in that quarter. It is also clear that if R did, in fact, have the maximum creditable earnings of $4,800 in 1959 and there is any statutory basis for crediting the remaining $600 to his earnings record as wages, "each quarter of * * * [1959] shall * * * be a quarter of coverage." See section 213(a)(2)(ii) of the Act.

Accordingly, since there is no entry in the Secretary's records of wages having been paid to R in the last three quarters of 1959, held, the presumption established by section 205(c)(4)(B) of the Act that no wages were paid can be rebutted by primary proof that wages were actually paid to him in those quarters and the Secretary's records for R may be corrected under section 205(c)(5)(H) of the Act. The correction may be made by crediting R with wages of $600 for the second quarter of 1959, thus making the third and fourth quarters so-called "gift" quarters of coverage under section 213(a)(2)(ii) of the Act. Since R is conclusively presumed to have been paid wages of $4,200 and no more, in the first quarter of 1959, crediting him with $600 in the second quarter, the earliest quarter thereafter in which he received wages, would not contravene the requirement in section 209(a)(3) of the Act that only the first $4,800 of remuneration is creditable as wages in 1959.

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