John D. and Karen Beatty - Page 7

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          petitioner incurred in connection with the program are deductible           
          as employee business expenses, the provisions of section 67 (2-             
          percent floor on miscellaneous itemized deductions) and section             
          55 (alternative minimum tax) result in the increased deficiency             
          now claimed by respondent.                                                  
               Petitioner maintains that he did not receive the meal                  
          allowances in return for services provided to Howard County as an           
          employee, but rather as an independent contractor.  According to            
          petitioners, the income and costs attributable to the program are           
          properly reportable, and were properly reported, on a Schedule C.           
          As an alternative, petitioners also argue that even if the meal             
          allowances were received by petitioner "in an employee capacity,            
          only the net profit earned * * * constituted gross income."                 
               Although the parties paid some attention to the alternative            
          position advanced by petitioners, almost the entire record and              
          major portions of the briefs relate to the classification issue.            
          In their respective briefs, the parties discussed at length the             
          relevant factors that are usually considered in resolving such              
          issues.  Judging from the way that the issues were framed and the           
          arguments presented, it is clear that the parties expect that the           
          classification issue must first be resolved before petitioners              
          correct 1991 Federal income tax liability can be determined.4               

            In her opening brief, respondent framed the classification                
          issue as follows:                                                           
               Whether petitioner, John D. Beatty, as Sheriff of Howard               
               County, Indiana, was an employee for purposes of I.R.C.                
               sections 62 and 67, thereby subjecting his trade or business           
               expenses for 1991 to the two percent floor for miscellaneous           




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