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McMickle “under the table”, which explains the lack of
withholding for taxes and Social Security. Petitioner testified
that Mr. McMickle owned the construction company and controlled
the details of when and how the work was to be performed at the
various project locations. Mr. McMickle determined the hours to
be worked by the employees, including petitioner. There is
nothing in the record that indicates that petitioner was
responsible for profits or losses with respect to the rough
framing activity. Moreover, the record does not indicate that
petitioner was responsible for his own work expenses or that he
was required to purchase his own tools for use on the job.
Petitioner never signed a contract with Mr. McMickle or anybody
else with respect to the various rough framing projects that
indicated that he was an independent contractor. Mr. McMickle
could terminate petitioner at any time. We find petitioner’s
testimony credible.
Again, we note that respondent failed to rebut petitioner’s
testimony because he did not call Mr. McMickle as a witness.
Based on the facts before us, and in light of the factors
enumerated above, we find that petitioner was an employee during
2003. Accordingly, petitioner is not subject to self-employment
tax. Petitioner is sustained on this issue.
Reviewed and adopted as the report of the Small Tax Case
Division.
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