Kenneth W. Frische - Page 6




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          of the services provided.  Finally, the Court must consider not             
          only what actual control is exercised but also what right of                
          control exists as a practical matter.  See Hathaway v.                      
          Commissioner, T.C. Memo. 1996-389.                                          
               The Court finds it noteworthy that petitioner did not have             
          clients of his own.  Petitioner's sole income as a process server           
          came from the Messenger Service.  The Messenger Service                     
          determined the geographic area that petitioner was to serve.  At            
          least one other person was a process server who worked a                    
          different geographic area.  Petitioner was required to report or            
          make a return of his service activity to the Messenger Service.             
          Petitioner reported regularly, although not necessarily on a                
          daily basis, to a place maintained by the Messenger Service for             
          the conduct of its trade or business.  Although petitioner was              
          not provided a daily schedule of services to be made on any given           
          day, the Messenger Service determined the urgency or the priority           
          for certain services, and petitioner was required to report on              
          the results of his services.  On this record, the Messenger                 
          Service retained the necessary control over petitioner's activity           
          consistent with an employer-employee relationship.  Although                
          petitioner was required to use his own vehicle to make his                  
          services, he otherwise had no investment in the work facilities.            
          Petitioner was paid a specific amount for each service he made              
          plus mileage; consequently, he had no opportunity for profit or             





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