-10-
exists is a question of fact. Air Terminal Cab, Inc. v. United
States, 478 F.2d 575, 578 (8th Cir. 1973); Professional & Executive
Leasing, Inc. v. Commissioner, 89 T.C. 225, 232 (1987), affd. 862
F.2d 751 (9th Cir. 1988). If an employer-employee relationship
exists, its characterization by the parties as some other
relationship, such as independent contractor, is of no consequence.
Sec. 31.3121(d)-1(a)(3), Employment Tax Regs.
7(...continued)
employer-employee relationship as follows:
(b) Generally the relationship of employer
and employee exists when the person for whom
services are performed has the right to
control and direct the individual who
performs the services, not only as to the
result to be accomplished by the work but
also as to the details and means by which
that result is accomplished. That is, an
employee is subject to the will and control
of the employer not only as to what shall be
done but how it shall be done. In this
connection, it is not necessary that the
employer actually direct or control the
manner in which the services are performed;
it is sufficient if he [or she] has the right
to do so. The right to discharge is also an
important factor indicating that the person
possessing that right is an employer. Other
factors characteristic of an employer, but
not necessarily present in every case, are
the furnishing of tools and the furnishing of
a place to work to the individual who
performs the services. In general, if an
individual is subject to the control or
direction of another merely as to the result
to be accomplished by the work and not as to
the means and methods for accomplishing the
result, he [or she] is not an employee.
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