Orion Contracting Trust, Kevin Peter Carmel, General Manager - Page 13

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          enjoyed a fair degree of permanency.  Additionally, there was no            
          evidence that these individuals enjoyed the opportunity for                 
          profit or loss beyond the work performed for, and hourly wage               
          paid by, petitioner.  Finally, while Carmel testified that some             
          of the workers provided their own tools, including hammers and in           
          some cases Skil-saws, many of the materials needed for the work,            
          including the concrete, were provided by petitioner.  These                 
          factors all suggest to the Court that the individuals were in               
          fact employees of petitioner and not independent contractors.               
               In contrast, the only evidence before the Court to support a           
          finding that the workers were independent contractors is                    
          petitioner’s intent to create such a relationship.  The contract            
          Carmel and Damigos signed to form petitioner included a provision           
          for the preparation of independent contractor agreements.  While            
          evidence of the parties’ understanding of the relationship is one           
          factor we consider, it is not enough to overcome the weight of              
          the other factors which clearly evidence an employer-employee               
          relationship.  See, e.g., Kumpel v. Commissioner, T.C. Memo.                
          2003-265 (“Where, as here, common law factors compel a finding              
          that an employer-employee relationship exists, the parties’                 
          intentions to the contrary will not be given effect.”).                     











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Last modified: May 25, 2011