26 U.S.C. § 45B: Credit for portion of employer social security taxes paid with respect to employee cash tips

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 during the taxable year. are deemed to have been paid by the employer to the employee pursuant to section 3121(q) (without regard to whether such tips are reported under section 6053), and 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)(1) of the Fair Labor Standards Act of 1938 (determined without regard to section 3(m) of such Act, and in the case of food or beverage establishments, as in effect on January 1, 2007 ). The providing, delivering, or serving of food or beverages for consumption, if the tipping of employees delivering or serving food or beverages by customers is customary. Barbering and hair care. Nail care. Esthetics. Body and spa treatments. No deduction shall be allowed under this chapter for any amount taken into account in determining the credit under this section. This section shall not apply to a taxpayer for any taxable year if such taxpayer elects to have this section not apply for such taxable year.