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Section 5041(a) imposes a gallonage tax on wines and does
not relate to income taxes. The gallonage tax of section 5041(a)
is an alcohol excise tax under subtitle E of the Internal Revenue
Code and not an income tax under subtitle A. Section 5041(a) is
therefore wholly irrelevant to the determination of petitioner’s
income tax liability.
Section 3509 provides, as a general rule, that an employer
who fails to withhold income tax from an employee’s wages by
reason of treating such employee as not being an employee for
withholding purposes shall be liable for income tax as if the
amount required to be withheld were equal to 1.5 percent of the
wages paid to such employee.3 Sec. 3509(a)(1). However, section
3509(d)(1) provides that the employee’s liability for tax shall
not be affected by the assessment or collection of any additional
income tax determined to be owing from the employer. Sec.
3509(d)(1)(A). Therefore, Mimi’s classification of petitioner as
an independent contractor during 2003 cannot discharge or reduce
petitioner’s obligation to pay taxes on the wage income she
received from Mimi’s during 2003. See, e.g., Lucas v.
Commissioner, T.C. Memo. 2000-14; Grooms v. Commissioner, T.C.
Memo. 1992-291.
3 Under such circumstances, the employer is also liable for
20 percent of the employee Social Security tax that would have
been imposed if the employer had properly classified the taxpayer
as an employee. Sec. 3509(a)(2).
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Last modified: November 10, 2007