# SSR 73-33c: SSR 73-33c: Rescinded 1984

> Federal · Rulings · Rescinded

URL: https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_73_33c

## Section

- **Citation:** SSR 73-33c
- **Heading:** SSR 73-33c: Rescinded 1984
- **Jurisdiction:** Federal
- **Kind:** Rulings
- **Status:** Rescinded
- **Text as of:** August 14, 2026
- **Source:** Compiled text
- **Location:** Social Security Rulings / OASI / Self-Employment / SSR 73-33c

## Text

20 CFR 404.1050 and 404.1051(f)

SSR 73-33c

Ross v. Richardson, U.S.D.C., N.D., Miss., No. WC 71-33-K (8/10/72)
(CCH, UIR, Vol. 1A, Fed. para. 16,837)

Plaintiff entered verbal agreement with firm to serve as self-employed
commissioned agent. Services were performed at home with assistance of his
wife. Payment for services was to plaintiff only, earnings were reported
in his name for tax purposes, and wife had no social security number. All
federal tax returns listed her as housewife. Plaintiff, alleging the
business arrangement was a joint venture with his spouse, appealed from
Secretary's denial of his claim for lump-sum death payment and surviving
child's insurance benefits resulting from lack of wife's insured status
for social security purposes. Held, substantial evidence supports
Secretary's finding that plaintiff was sole proprietor of business
arrangement; his wife's relationship to his duties was in nature of
"family arrangement" and gave rise to no self-employment income creditable
for social security purposes; therefore, no lump-sum death payment nor
child's insurance benefits are payable on her earnings record.

KEADY, Chief Judge: This action was brought by Winston Ross, plaintiff,
pursuant to 42 U.S.C. §405(g) to obtain judicial review of the final
decision of the Secretary of Health, Education, and Welfare denying
plaintiff's claim to a lump-sum death payment and surviving child's
insurance benefits under the Social Security Act, 42 U.S.C. §301 et
seq.

Defendant having moved for summary judgment on the record below, we are
required to affirm if the Secretary's findings are supported by
substantial evidence on the record as a whole. McCarty v.
Richardson, —F.2d—5 Cir. 1972); Richardson v.
Perales, 402 U.S. 389, 28 L. Ed. 2d 842 (1971); Cross v. Finch, 427 F. 2d 406 (5 Cir. 1970). Review of the record discloses the following
relevant facts.
endant having moved for summary judgment on the record below, we are
required to affirm if the Secretary's findings are supported by
substantial evidence on the record as a whole. McCarty v.
Richardson, —F.2d—5 Cir. 1972); Richardson v.
Perales, 402 U.S. 389, 28 L. Ed. 2d 842 (1971); Cross v. Finch, 427 F. 2d 406 (5 Cir. 1970). Review of the record discloses the following
relevant facts.

Plaintiff's wife died on July 4, 1969, at the age of 35. On October 1,
1969, plaintiff applied for a social security number for his wife as a
deceased wage earner. On the following day, plaintiff applied to the
Social Security Administration for a lump-sum death payment, pursuant to
42 USC §402(i), and surviving child's insurance benefits, pursuant to
42 USC §402(d), on behalf of their four minor children. In
conjunction with his claims, plaintiff filed a statement alleging that he
had entered into a verbal business agreement with Kimmel Aviation Company,
Inc., Houston, Mississippi, to serve as a part-time commissioned agent and
to perform such additional services as needed, including bookkeeping,
setting flight schedules, and depositing monies. Plaintiff stated that the
services were performed at home and that, since he was frequently away,
his wife assumed the major part of the work. Plaintiff further stated that
he and his wife considered the business arrangement to be a joint venture
from which each was to share equally on a 50-50 basis. The gravamen of
plaintiff's claim was that his wife was entitled to insurance coverage
from 1966 until the time of her death in 1969 because of the nature of the
business relationship.
his wife assumed the major part of the work. Plaintiff further stated that
he and his wife considered the business arrangement to be a joint venture
from which each was to share equally on a 50-50 basis. The gravamen of
plaintiff's claim was that his wife was entitled to insurance coverage
from 1966 until the time of her death in 1969 because of the nature of the
business relationship.

On November 10, 1969, plaintiff was notified by the Social Security
Administration that his wife had acquired none of the statutory minimum
quarters of social security coverage at the time of her death, thus no
survivor benefits were payable.1 Plaintiff requested reconsideration of
the administration's adverse ruling and submitted a statement by the
president of Kimmel Aviation Company, Inc. that the company had entered
into the business agreement with the understanding that plaintiff's wife
would perform the duties of bookkeeping and billing. Upon reconsideration
on January 19, 1970, the administration declined to overturn its original
decision and concluded that the facts did not support plaintiff's claim
that the enterprise was operated as a joint venture or a partnership. On
the contrary, the administration noted that the aviation firm honored its
verbal contract by paying plaintiff only; the earnings from the agreement
were reported to the Internal Revenue Service as plaintiff's alone with no
mention of the alleged partnership or joint venture; indeed, no
application for a social security number for plaintiff's wife had ever
been filed until after her death.
he contrary, the administration noted that the aviation firm honored its
verbal contract by paying plaintiff only; the earnings from the agreement
were reported to the Internal Revenue Service as plaintiff's alone with no
mention of the alleged partnership or joint venture; indeed, no
application for a social security number for plaintiff's wife had ever
been filed until after her death.

Upon plaintiff's timely request, a hearing on his claim was held on August
11, 1970. After consideration of the testimony and the evidence of record,
the hearing examiner concluded that plaintiff's wife had acquired no
self-employment income creditable for social security purposes and thus
lacked the required quarters of coverage at the time of her death. The
hearing examiner found that the evidence was conclusive that plaintiff
alone had agreed with Kimmel Aviation Company, Inc., to serve as a
commissioned agent and that his wife's relationship to his duties and
responsibilities was in the nature of a "family arrangement" whereby
plaintiff was the sole proprietor of the enterprise and the wife merely
assisted in the work. The hearing examiner based his decision on the
following relevant facts:

Claimant's wife performed at least half or more of the work required in
connection with this business operation. She considered herself a
housewife, and preferred assisting her husband in working at home rather
than being employed outside the home. The children also assisted to a
limited extent. Mrs. Ross did not apply for a Social Security Account
Number during her lifetime, but such was secured after her death. All of
the checks made in payment for the services of the claimant in the form of
commissions were made in claimant's name only. Wage and tax statements
(Form W-2) for 1966 through 1968 were made in claimant's name only. All
tax returns filed with Internal Revenue Service for the years 1966 through
1968 listed Mrs
ccount
Number during her lifetime, but such was secured after her death. All of
the checks made in payment for the services of the claimant in the form of
commissions were made in claimant's name only. Wage and tax statements
(Form W-2) for 1966 through 1968 were made in claimant's name only. All
tax returns filed with Internal Revenue Service for the years 1966 through
1968 listed Mrs. Ross' occupation as housewife, no Social Security Account
Number was given for her, and no partnership returns were filed. It was
common knowledge or belief among the people in the local community that
the claimant was the manager in the crop dusting activity while his wife
performed most of the work. Hearing Examiner's Decision, p. 7 (Sept. 18,
1970).

The hearing examiner's decision was approved by the Appeals Council,
Social Security Administration, on April 26, 1971.

Initially, we note that the burden was on plaintiff in the administrative
proceedings below to prove the existence of a partnership between himself
and his wife by a preponderance of the evidence. Williams v.
Gardner, 359 F. 2d (5 Cir. 1966). The Social Security Act, 42 USC
§411(d), provides that the terms "partnership" and "partner" shall have
the same meaning as recognized by the Internal Revenue Code.

In Commissioner of Internal Revenue v. Culbertson, 337 U.S. 733,
742, 93 L. Ed. 1659, 1665 (1949), the Supreme Court said that whether a
family partnership exists for income tax purposes depends on the true
intent of the parties as shown by the facts surrounding their agreement.
The Court there stated:
and "partner" shall have
the same meaning as recognized by the Internal Revenue Code.

In Commissioner of Internal Revenue v. Culbertson, 337 U.S. 733,
742, 93 L. Ed. 1659, 1665 (1949), the Supreme Court said that whether a
family partnership exists for income tax purposes depends on the true
intent of the parties as shown by the facts surrounding their agreement.
The Court there stated:

The question is . . . whether, considering all the facts—the
agreement, the conduct of the parties in execution of its provisions,
their statements, the testimony of disinterested persons, the relationship
of the parties, their respective abilities and capital contributions, the
actual control of income and the purposes for which it is used, and any
other facts throwing light on their true intent—the parties in good
faith and acting with a business purpose intended to join together in the
present conduct of the enterprise.

Similarly, the rule expressed in Culbertson is applicable to
determine whether a partnership exists in social security cases. Wright
v. Celebrezze, 262 F. Supp. (N.D.N.Y. 1965), aff'd, Wright v.
Gardner, 370 F.2d 332 (2 Cir. 1966).

After a careful review of the record, including the evidence adduced in
the proceedings below, the court concludes that there is substantial
evidence to support the Secretary's findings that plaintiff was the sole
proprietor of the business enterprise with Kimmel Aviation Company, Inc.,
and plaintiff's wife had no self-employment income creditable for social
security purposes at the time of her death. The court concludes,
therefore, that the Secretary's decision that neither plaintiff nor his
children were entitled to insurance benefits based upon their applications
filed on October 2, 1969, must be sustained and upheld.

Therefore, defendant's motion for summary judgment is sustained and the
complaint is dismissed with prejudice.
for social
security purposes at the time of her death. The court concludes,
therefore, that the Secretary's decision that neither plaintiff nor his
children were entitled to insurance benefits based upon their applications
filed on October 2, 1969, must be sustained and upheld.

Therefore, defendant's motion for summary judgment is sustained and the
complaint is dismissed with prejudice.

1. USC §402(d) and (i) provide for lump-sum death payment and child's
insurance benefits only if the wage earner dies as a "fully or currently
insured individual." 42 USC §414 defines a fully insured individual
as one with at least 6 quarters of coverage and a currently insured
individual one "who had not less than six quarters of coverage during the
thirteen-quarter period ending with (1) the quarter in which he died. . .
."

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Source: Frix Law Library, https://www.frixlaw.com/law-library/statutes/SSA_SSR_OASI_SSR_73_33c. Check the current official text before relying on it. Not legal advice.