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(above-the-line deductions). Section 62(a)(1) states the general
rule that trade or business deductions are allowed for such
purpose only "if such trade or business does not consist of the
performance of services by the taxpayer as an employee".
Consequently, for employed individuals, section 162 trade and
business deductions are ordinarily itemized deductions. Secs.
161 and 162; see Alexander v. Commissioner, T.C. Memo. 1995-51,
affd. 72 F.3d 938 (1st Cir. 1995). Work-related expenses
incurred by an independent contractor, on the other hand, are
deductible above the line under section 62(a)(1).
Petitioners contend that the legal fees and costs were
incurred in petitioner's capacity as an independent contractor,
rather than as an employee. Petitioners state that respondent
"has adduced no evidence to dispute * * * [petitioner's]
independent contractor status." Therefore, petitioners assert
that the deductions are not itemized deductions but above-the-
line Schedule C deductions. Respondent, on the other hand, avers
that petitioners have presented no evidence entitling them to
deduct the expenses on Schedule C. We agree with respondent.
The Code does not define the term "employee". Whether the
employer-employee relationship exists is a factual question.
Weber v. Commissioner, 103 T.C. 378, 386 (1994), affd. 60 F.3d
1104 (4th Cir. 1995). Among the relevant factors in determining
the nature of an employment relationship are the following: (1)
The degree of control exercised by the principal over the details
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