SSR 61-27. BABY SITTER

R takes care of a child, C, whose mother, M, works during the day. M

brings C to R's home at 8:00 a.m. and picks her up at 5:00 p.m., Monday

through Friday. M furnishes C's milk, but R furnishes and prepares C's

noon meal. For her services and for providing a noon meal for C each day,

R is paid x dollars per day. Under the arrangement with M, R cares

for the child personally, but is given no instructions as to how to do so,

except when special medicines are required for C. R uses her own judgment

as to how to care for C and what kind of meals to prepare. R is also free

to do her own housework when C does not require her attention, such as

when C is taking her afternoon nap. R does not hold herself out to the

public as being available to do such work and she had not done this type

of work for anyone else.

The question is whether R is an employee or a self-employed person.

Section 210(j) of the Social Security Act provides that the term

"employed" means any individual who, under the usual common-law rules

applicable in determining the employer-employee relationship, has the

status of employee. The guides for determining when an employer-employee

relationship exists are set out in Regulations No. 4, §

404.1004( c ). Generally such a relationship exists when the person

for whom services are performed has the right to control and direct the

individual who performs the services, not only as to the result to be

accomplished by the work but also as to the details and means by which

that result is accomplished. Whether an individual is an employee under

the common-law rules is largely a question of fact to be determined from

the facts and circumstances in each case.

services are performed has the right to control and direct the

individual who performs the services, not only as to the result to be

accomplished by the work but also as to the details and means by which

that result is accomplished. Whether an individual is an employee under

the common-law rules is largely a question of fact to be determined from

the facts and circumstances in each case.

Under circumstances such as those in the present case, where a parent

leaves her child at another person's home each day to be cared for and the

parent does not give the person any instructions how to care for the

child, except with regard to such special matters as diet, health, rest,

and occasionally special medicines or special foods, such facts, by

themselves, do not show a right to control and direct the person in the

performance of her services to the extent that is necessary under the

usual common-law rules to establish the relationship of employer and

employee. Accordingly, it is held that R is not an employee of

M.

Section 211(c) provides, with certain exceptions, that the term "trade or

business," when used with reference to self-employment income or net

earnings from self-employment, shall have the same meaning as when used in

section 162 of the Internal Revenue Code of 1954.

Whether or not a person is engaged in a trade or business is dependent

upon all the facts and circumstances in the particular case. As a general

rule, when a person is regularly engaged in an occupation or profession

for profit, and is not an employee as to such occupation or profession nor

otherwise excluded from the self-employment provisions of the Social

Security Act, such person is engaged in a trade or business within the

meaning of section 211(c) and the income from such trade or business is

includible in computing his net earnings from self-employment.

y engaged in an occupation or profession

for profit, and is not an employee as to such occupation or profession nor

otherwise excluded from the self-employment provisions of the Social

Security Act, such person is engaged in a trade or business within the

meaning of section 211(c) and the income from such trade or business is

includible in computing his net earnings from self-employment.

In the present case, it is held that R, in caring for a child in

her own home under the above circumstances, is engaged in a trade or

business and the income derived therefrom is includible in computing her

net earnings from self-employment.