Jack C. Goins, Sr. and Edith M. Goins - Page 12




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               To the extent that petitioner is entitled to any business              
          expense deductions, respondent argues that the deductions should            
          be treated as employee business expenses, deductible as                     
          miscellaneous itemized deductions.  See secs. 62(a)(1) and (2),             
          67.  In support of this argument, respondent points out that                
          petitioner’s employment contracts with the DOI constitute                   
          agreements entered into pursuant to section 218 of the Social               
          Security Act.  That being so, respondent relies upon section                
          3121(d)(4), which defines “employee” for purposes of the Federal            
          Insurance Contributions Act (FICA) as “any individual who                   
          performs services that are included under an agreement entered              
          into pursuant to section 218 of the Social Security Act.”                   
          Respondent apparently takes the position that an individual who             
          fits within the definition of employee for FICA purposes should             
          be treated as an employee for purposes of section 62.  We                   
          disagree.                                                                   
               In Hathaway v. Commissioner, T.C. Memo. 1996-389, we held              
          that a taxpayer described as an employee in section 3121(d)(3) is           
          not necessarily an employee for purposes of the treatment of the            
          taxpayer’s business expense deductions.  Instead, we concluded              
          that for such purposes, the distinction between an employee and             
          an independent contractor is made through the application of                
          common-law rules applicable in determining whether an employer-             
          employee relationship exists.  See id.                                      






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