2021 New Mexico Statutes
Article 14 - Social Security Coverage
Section 10-14-2 - Definitions.

For the purposes of Sections 10-14-1 through 10-14-10 NMSA 1978:
A. the term "wages" means all remuneration for employment as defined herein, including the cash value of all remuneration paid in any medium other than cash, except that such term shall not include that part of such remuneration which, even if it were for "employment" within the meaning of the Federal Insurance Contributions Act would not constitute "wages" within the meaning of that act;
B. the term "employment" means any service performed by an employee in the employ of the state, or any political subdivision thereof, for such employer, except (1) service which in the absence of an agreement entered into under this act [10-14-1 to 10-14-3, 10-14-5 to 10-14-10 NMSA 1978] would constitute "employment" as defined in the Social Security Act; or (2) service which under the Social Security Act may not be included in an agreement between the state and the secretary of health, education and welfare entered into under this act. Service which under the Social Security Act may be included in an agreement only upon certification by the governor or an officer of the state designated by the governor, in accordance with Section 218(d)(3) of that act shall be included in the term "employment" if and when the governor, or an officer of the state designated by the governor, issues, with respect to such service, a certificate to the secretary of health, education and welfare pursuant to Section 9(b) [10-14-10B NMSA 1978] of this act, provided, however, that an agreement may exclude (1) any service of an emergency nature; (2) services performed in the employ of a school, college or university by a student who is enrolled and regularly attending classes at such school, college or university; (3) all services in any class or classes of (a) elective positions; (b) part-time positions, or (c) positions the compensation for which is on a fee basis, performed by an employee of the state or an employee of a subdivision of the state, if so provided in a plan submitted by said subdivision under Section 5 [10-14-6 NMSA 1978] of this act;
C. the term "employee" includes an officer of a state or political subdivision thereof;
D. the term "state agency" means the agency of the state of New Mexico designated by the governor for the administration of this act;
E. the term "secretary of health, education and welfare" includes any individual to whom the secretary of health, education and welfare has delegated any functions under the Social Security Act with respect to coverage under such act of employees of states and their political subdivisions, and with respect to any action taken prior to April 11, 1953, includes the federal security administrator and any individual to whom such administrator had delegated any such function;
F. the term "political subdivision" includes an instrumentality of the state or one or more of its political subdivisions, or of the state and one or more of its political subdivisions, but only if such instrumentality is a juristic entity which is legally separate and distinct from the state or subdivision and only if its employees are not by virtue of their relation to such juristic entity employees of the state or subdivision;
G. the term "Social Security Act" means the act of congress approved August 14, 1935, Chapter 531, 49 Stat. 620, officially cited as the "Social Security Act," (including regulations and requirements issued pursuant thereto), as such act has been and may from time to time be amended; and
H. the term "Federal Insurance Contributions Act" means Subchapter A of Chapter 9 of the federal Internal Revenue Code of 1939 and Subchapters A and B of Chapter 21 of the federal Internal Revenue Code of 1954, as such codes have been and may from time to time be amended; and the term "employee tax" means the tax imposed by Section 1400 of such code of 1939 and Section 3101 of such code of 1954, as it has been and may from time to time be amended.
History: 1953 Comp., § 5-7-2, enacted by Laws 1955, ch. 172, § 2; 1973, ch. 329, § 1.
Compiler's notes. — Section 1400 of the Internal Revenue Code of 1939, referred to in Subsection H, has been repealed and superseded by § 3101 of the Internal Revenue Code of 1986, also referred to in Subsection H, compiled as 26 U.S.C. § 3101.
Cross references. — For the Federal Insurance Contributions Act, see 26 U.S.C. §§ 3101 to 3128.
For the federal Social Security Act, see 42 U.S.C. § 301 et seq. For Section 218(d)(3) of the act, see 42 U.S.C. § 418(d)(3).
Effect of section on sick leave payments. — Where the university of New Mexico did not make a social security contribution with respect to sick leave payments on the grounds that such payments were excluded from wages, the social security administration was justified in assessing $28.60 in respect to those payments and holding that they were not excluded from wages. New Mexico v. Weinberger, 517 F.2d 989 (10th Cir. 1975), cert. denied, 423 U.S. 1051, 96 S. Ct. 779, 46 L. Ed. 2d 640 (1976).
Exclusion construed differently. — In assessing contributions to be paid in by private employers the commissioner of internal revenue has construed the sick pay exclusion from wages differently than has the secretary of health, education and welfare in assessing public employers. N.M. v. Weinberger, 517 F.2d 989 (10th Cir. 1975), cert. denied, 423 U.S. 1051, 96 S. Ct. 779, 46 L. Ed. 2d 640 (1976).
Sick leave payments are wages. — Payments made to employees of the University of New Mexico during period of sickness are considered wages and therefore reportable for social security purposes. 1971 Op. Att'y Gen. No. 71-21.
Hospitals not political subdivisions. — Hospitals created jointly by counties and municipalities are not independent political subdivisions, but are an intricate part of the county and the municipality creating the same, and therefore they can come under the social security system only as the county and the municipality of which they are part come within the provisions of the Social Security Act. 1956 Op. Att'y Gen. No. 56-6437.
Mayordomo officer of political subdivision. — The mayordomo of a community ditch association is considered an officer of a political subdivision of the state for social security coverage purposes. 1970 Op. Att'y Gen. No. 70-46.
Am. Jur. 2d, A.L.R. and C.J.S. references. — 81 C.J.S. Social Security and Public Welfare § 28.