1. (a) Agricultural labor — Federal definition — Arkansas Code § 26-51-902(1). "Agricultural labor" shall be as defined in I.R.C. § 3121(g), as in effect on January 1, 1993.

2. (b) Agricultural labor — When nonagricultural labor is also performed — Arkansas Code § 26-51-902(1).

   1. (1) Where an employee performs duties consisting of both agricultural and nonagricultural labor, the agricultural exemption applies only if the employee in question performs services that constitute valid agricultural labor for at least one-half (1/2) of any pay period (a period of not more than thirty-one (31) consecutive days).
   2. (2) When this requirement has been met, all wages paid by the employer to the employee for the given pay period will be exempt from withholding.
   3. (3) See Ragland v. Pittman Garden Center, 293 Ark. 533, 739 S.W.2d 671 (1987).

3. (c) Agricultural labor — Landscaping services — Arkansas Code § 26-51-902(1).

   1. (1) Landscaping services do not fall within the scope of agricultural labor.

   2. (2)

      1. (A) Services performed at nurseries or garden centers operated primarily for the raising of horticultural commodities do fall within the scope of agricultural labor.
      2. (B) However, a nursery or garden center employee is no longer considered to be engaged in agricultural labor at the moment the employee leaves the nursery or garden center to engage in nonagricultural labor.
   3. (3) See Ragland v. Pittman Garden Center, 299 Ark. 293, 772 S.W.2d 331 (1989).

4. (d) Employer — Arkansas Code § 26-51-902(5).

   1. (1) An "employer" is any employer, whether a resident or nonresident of Arkansas, who:

      1. (A) Is carrying on business activity within Arkansas or is receiving income from sources located within Arkansas; and
      2. (B) Has control, either directly or through an officer or agent, over the payment of wages to an individual for services performed by such individual within Arkansas.

   2. (2) Nonresident employers include both:

      1. (A) Transient employers; and
      2. (B) Those employers carrying on business activity within Arkansas or receiving income from sources within Arkansas on a long-term (nontransient) basis.

5. (e) Transient employer — Arkansas Code § 26-51-902(11).

   1. (1) A "transient employer" is an employer who:

      1. (A) Is not a resident of Arkansas; and
      2. (B) Temporarily engages in any activity within Arkansas for the purpose of producing income for the employer.
   2. (2) A temporary engagement is one that, as of any date, cannot reasonably be expected to continue for a period of eighteen (18) consecutive months.
   3. (3) See also 26 CAR § 100-155(b).

6. (f) Wages for agricultural labor — Cash remuneration — Arkansas Code § 26-51-902(12)(B). Pursuant to I.R.C. § 3121(a), cash remuneration paid by an employer in any calendar year to an employee for agricultural labor shall not be considered wages subject to withholding unless:

   1. (1) The cash remuneration paid in such year by the employer to the employee for such labor is one hundred fifty dollars ($150) or more; or

   2. (2)

      1. (A) The employer's expenditures for agricultural labor in such year equal or exceed two thousand five hundred dollars ($2,500).
      2. (B) However, subdivision (f)(2) of this section shall not apply in determining whether remuneration paid to an employee constitutes wages if such employee:

7. (i) Is employed as a hand-harvest laborer and is paid on a piece-rate basis in an operation that has been, and is customarily and generally recognized as having been, paid on a piece-rate basis in the region of employment;

   1. (ii) Commutes daily from his or her permanent residence to the farm on which he or she is employed; and

      1. (iii) Has been employed in agriculture less than thirteen (13) weeks during the prior calendar year.
8. (g) Wages for agricultural labor — Noncash remuneration — Arkansas Code § 26-51-902(13)(B). Remuneration paid in any medium other than cash for agricultural labor shall not be considered wages, regardless of the amount or quantity paid.

9. (h) Withholding of income tax on agricultural wages — Arkansas Code § 26-51-902(13)(B)(i) and (ii).

   1. (1) When cash remuneration paid for agricultural labor is considered wages according to the criteria set forth above, if the agricultural employer pays wages to four (4) or more employees during any reporting period, the employer shall be required to withhold Arkansas income taxes for any such reporting periods.
   2. (2) However, if the agricultural employer pays wages to three (3) or fewer employees during a reporting period, the employer shall have the option to withhold Arkansas income taxes for any such reporting periods if the employer so chooses.

Codification Notes: I.R.C. § 3121(g) is codified at 26 U.S.C. § 3121(g). I.R.C. § 3121(a) is codified at 26 U.S.C. § 3121(a).