20 CFR 404.1257 and 404.1270
The State of Connecticut timely requested a review under Section 218(s) of the Social Security Act, as amended, of the Administration's assessment of contributions due based on its determination that coverage of the positions of State's attorneys continued on and after July 1, 1967, when such positions were removed from the State Employees' Retirement System (covered) and impressed under a newly created retirement system (non-covered). The State is of the view coverage terminated.
The facts establish that the State of Connecticut entered into a section 218 social security coverage agreement January 24, 1952. Subsequently, coverage was provided to Part B, State Employees' Retirement System (the portion of a retirement system divided on the basis of the members' desire for coverage, and all new members), and to retirement system members in positions under more than one retirement system.
Effective July 1, 1967, the State transferred the positions of State's attorneys, covered under Part B, State Employees' Retirement System, to a newly created noncovered retirement system. State law is applied in determining when a position is under a retirement system and which employees are eligible for membership in a retirement system. Based upon authority contained in the 1967 Connecticut Public Act No. 622, the State attorney general held that social security coverage of the positions of State's attorneys terminated after transferral to the new system.
The Administration determined coverage continued on and after July 1, 1967, for employees occupying positions of State's attorneys as members of Part B, State Employees' Retirement System regardless of the fact their positions were impressed under a different, noncovered retirement system. Additionally, the Administration concluded that after June 30, 1967, such coverage would continue until such time as the position is filled by a new occupant who is required to become a member of the new retirement system and may not become a member of Part B, State Employees' Retirement System.
Subsection 218(d)(4)(A) of the act, in part, clearly states that for the purposes of providing coverage a deemed separate coverage group includes employees in positions which were covered by the same retirement system ". . . on the date the agreement was made applicable to such system. . . ." Nowhere in section 218 does it indicate that once such coverage is effectuated its continuity depends on whether the positions continue to be covered by the retirement system after the date the agreement was made applicable to such system. Similarly, once a position is properly covered as part of an absolute coverage group, there is nothing in section 218 which allows the continuity of such coverage to be affected merely by the later extension of coverage under a retirement system to that position. Rather, coverage of the coverage group continued until it is ended in accordance with the provisions of subsection 218(g) relating to termination of coverage. If section 218 coverage of a retirement system coverage group may be ended at any time merely by removing retirement system coverage, then the provisions of subsection 218(g) relating to termination of coverage might well be rendered meaningless with respect to retirement system coverage groups.
The Commissioner found, on review pursuant to the State's request, that coverage of the positions of State's attorneys continued on and after July 1, 1967, when such positions were transferred from the covered part of the State Employees' Retirement System to a newly created noncovered retirement system. In addition, the Commissioner further found that, while the determination of whether a position is under a retirement system and which employees are eligible for membership in a retirement system falls within State law, the authority for determining whether social security coverage of services in a position continues or is terminated is governed by Federal law. On the basis of these findings, the Commissioner affirmed the Administration's assessment of contributions.
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