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

(a) General rule Employers get a tax credit equal to their "excess employer social security tax" paid or owed during the tax year. (b) Excess employer social security tax (1) In general: "Excess employer social security tax" means the Social Security tax an employer pays under section 3111 on tips an employee received during a given month, but only counting the part of those tips that: are treated as if the employer had paid them directly to the employee under section 3121(q) (whether or not those tips were reported under section 6053), and exceed the gap between the employee's actual non-tip wages that month and what the employee would have earned that month at the federal minimum wage rate (figured without the Fair Labor Standards Act's tip-credit provision, and — for food or beverage businesses — using the minimum wage as it stood on January 1, 2007). (2) Application only to certain lines of business: Only tips connected to these services count: providing, delivering, or serving food or drinks for consumption, where it's customary to tip the employees who deliver or serve it; and, where it's customary to tip for the service, barbering and hair care, nail care, esthetics (skin care), and body and spa treatments. (c) Denial of double benefit An employer cannot also take a tax deduction for any amount counted toward this credit. (d) Election not to claim credit An employer may choose, for any tax year, not to have this credit apply to them that year.