Paul E. Hathaway and Brenda J. Hathaway - Page 16

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               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).                                       




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