R was a street busker who played the accordion at various public locations. Each day, he would stroll from street to street looking for gatherings of people with whom he could share his talent. R would play in hair salons, restaurants, pubs, backyard barbecues, street corners, and anywhere else he could find an audience.
One might reasonably call him a modern-day troubadour.
He did not hold a license as a street musician, had no contractual arrangements, belonged to no union, and did not hold himself out for hire other than by spontaneously breaking out into melodious musicianship in public places where people might reasonably be expected to have disposable cash on hand. He targeted locations in which there was a reasonable expectation of payment for his services.
In October 1963 R applied for old age social security retirement benefits. The question was whether or not his activities as an itinerant musician qualified as a trade or business for purposes of social security coverage. It was held that they did.
The test for making this determination was four-pronged:
1. Was the activity carried on in good faith for the purpose of making a profit?
2. Was the activity regularly carried on; i.e. was it reasonably continuous, constant or regular?
3. Was the activity engaged in as a regular occupation or calling?
4. Did the person hold himself out to others as being engaged in the selling of goods or services?
Although R did not have a license and may have been violating city ordinances, he met the requirements of this test. His remuneration was in consideration of his services as a musician and was therefore distinguishable from a gift or gratuity. He qualified for retirement benefits.
See Social Security Ruling (SSR) 64-40.
This material should not be construed as legal advice for any particular fact situation, but is intended for general informational purposes only. For advice specific to any individual situation, an experienced attorney should be contacted.