A government official may be a disqualified person for the tax on self-dealing. However, the tax will be imposed only if the government official knows that the act is an act of self-dealing.
The term government official means an individual who at the time of the act of self-dealing holds any of the following offices or positions:
- An elective public office in the executive or legislative branch of the United States Government,
- An office in the executive or judicial branch of the U.S. Government, appointment to which was made by the President,
- A position in the executive, legislative or judicial branch of the U.S. Government—
a. Which is listed in Schedule C of Rule VI of the Civil Service Rules, or
b. The compensation for which is at least equal to the lowest rate prescribed for GS-16 of the General Schedule under 5 U.S.C. 5332,
- A position under either the U.S. House of Representatives or the U.S. Senate, held by an individual who receives gross annual pay of at least $15,000 (including expense allowances for which no accounting need be made),
- An elective or appointive public office in any branch of the government of any state, possession of the United States, or any subdivision of the foregoing, or the District of Columbia, held by an individual who receives gross annual pay of at least $20,000, or
- A position as personal or executive assistant or secretary to any individual already described.
Public office. For the purpose of (5), a holder of public office must be distinguished from a public employee. Although the determination depends on the facts and circumstances of each case, the essential element is whether a significant part of the activities of the individual is the independent performance of policymaking functions. Factors to be considered include that the office is created by the Congress, a state constitution, or state legislature, or by a municipality or other governmental body under powers created in it, and the duties to be discharged by the office are defined either directly or indirectly by the body that created it or through legislative authority.
Examples. The following illustrate positions of public employment that do not involve policymaking functions and are not a public office:
- The chancellor, president, provost, dean and other officers of a state university who are appointed, elected or otherwise hired by a State Board of Regents or equivalent public body and who are subject to the direction and supervision of that body,
- The superintendent of public schools and other public school officials who are appointed, elected or otherwise hired by a Board of Education or equivalent public body and who are subject to the direction and supervision of that body, or
- Members of police and fire departments, except for department heads who, under the facts and circumstances of the case, independently perform policymaking functions as a significant part of their activities.