TN 9 (05-90)
RS 02505.080 Considering the Nature of Services Rendered
Very often, consideration only of the time devoted to a trade or business enables a sound decision as to whether the services were or were not substantial. When this cannot be done, as in some 15 to 45 hour situations, consideration should be given to the nature of the services rendered in conjunction with the time devoted to the business.
1. Treatment Of Managerial And Technical Services By An Owner Or Partner In A Large Business
Determine whether the beneficiary's services are so important to the conduct of a sizable business that they are substantial even though the time is less than 45 hours per month.
2. Treatment Of Highly Skilled Services Such As Those Rendered By Professional Persons
Decide if the beneficiary's services as a physician, dentist, lawyer, accountant, engineer, scientist, management consultant, writer and other highly skilled occupations are of such a nature and value that they are substantial even if 45 hours or less.
NOTE: Adjudicators should not arbitrarily base the determination solely on the fact that the beneficiary is a highly skilled professional since the beneficiary's current services may not always require such skills. For example, a highly skilled labor attorney performing current services as a labor arbitrator for less than 45 hours per month would not necessarily be performing SS if his skill as an attorney were not required.
3. Treatment Of Services To Which High Earnings Are Directly Attributable
Consider that some personal professional services tend to be highly remunerative in determining if SS have been performed. Examples are: a very successful salesman; highly paid artisan; some advertising writers; among others. The closer such services approach 45 hours per month, the less skilled and valuable they would have to be to be considered substantial. If only an insignificant amount of time is spent, the services are not likely to be substantial.
4. Treatment Of Technical And Managerial Services
Weigh the nature of the services and the amount of time devoted to the business together.
Examine the earnings pattern to see if it confirms or rebuts the indication given by the occupation that highly valuable work is involved.
Consider that services which are performed regularly as one of the key functions of a business, are more likely to be substantial than those performed temporarily due to an unexpected absence or as a fill-in due to some other emergency.
View the services realistically in relation to the technical and management needs of the business and the contributions the beneficiary makes toward meeting those needs.