- 16 - Respondent contends that Hathaway was a common law employee in 1989 and 1990, and thus was required to report his income as wages and to deduct allowable expenses as itemized deductions subject to the limitations of section 67. We agree with petitioners that Hathaway was an independent contractor. Although paragraphs (1) and (2) of section 62(a) make the income tax treatment of a taxpayer’s trade or business expense deductions depend on whether the taxpayer is “perform[ing] * * * services * * * as an employee”, subtitle A does not define “employee”. Under these circumstances, we apply common law rules to determine whether an individual is an employee. Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-325 (1992); Weber v. Commissioner, 103 T.C. 378, 386 (1994), affd. 60 F.3d 1104 (4th Cir. 1995). In making this determination, we look to the general common law of agency and not the law of any particular State. Nationwide Mut. Ins. Co. v. Darden, 503 U.S. at 323 n.3 (citing with approval Community for Creative Non-Violence v. Reid, 490 U.S. 730, 740 (1989)). Whether a taxpayer is an independent contractor or a common law employee is a question of fact, Wolfe v. United States, 570 F.2d 278, 281-282 (8th Cir. 1978); Weber v. Commissioner, 103 T.C. at 386, or a mixed question of fact and law. Professional & Executive Leasing, Inc. v. Commissioner, 862 F.2d 751, 753 (9th Cir. 1988), affg. 89 T.C. 225 (1987).Page: Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Next
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