(b) Excess employer social security tax For purposes of this section
(1) In general The term excess employer social security tax means any tax paid by an employer under section
3111 with respect to tips received by an employee during any month, to the extent such tips
(A) 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
(B) 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 (as in effect on January 1, 2007, and determined without regard to section 3(m) of such Act).
(2) Only tips received for food or beverages taken into account
In applying paragraph (1), there shall be taken into account only tips received from customers in connection with 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.
