Paul E. Hathaway and Brenda J. Hathaway - Page 25

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          Hathaway was an employee of TAG.  Azad v. United States, 388 F.2d           
          at 78; Weber v. Commissioner, 103 T.C. at 392.                              
               Notwithstanding Hathaway’s and Arthur Penn's testimony and             
          Theresa Hinton’s March 21, 1990, letter, the bulk of the evidence           
          on this factor points to the conclusion that TAG and Hathaway               
          believed that they had created a employer-employee relationship.            
          This factor would support a finding that Hathaway was an employee           
          of TAG.                                                                     
          H.  Provision of Employee-Type Benefits7                                    
               Hathaway participated in TAG's pension plan and TAG provided           
          to Hathaway long-term disability insurance and life insurance.              
          TAG also funded two-thirds of Hathaway’s medical insurance                  
          benefits.                                                                   
               The provision of these benefits would support a finding that           
          Hathaway was an employee of TAG.  NLRB v. United Insurance Co.,             
          390 U.S. at 259; Azad v. United States, 388 F.2d at 78; Weber v.            
          Commissioner, 103 T.C. at 393-394.                                          
          I.  Conclusion                                                              
               The relationship between Hathaway and TAG had aspects that             
          were characteristic of an employer and an employee and others               


          7    On opening brief, respondent contends, for the first time,             
          that if Hathaway is not a common law employee, then the value of            
          any benefits provided by TAG to Hathaway would be taxable as                
          income to Hathaway.  This matter has not been properly pleaded,             
          and, thus, we shall not consider it here.  Markwardt v.                     
          Commissioner, 64 T.C. 989, 997-999 (1975).                                  





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