Harish K. and Maggy M.Pariani - Page 6

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          employee or an independent contractor as a question of fact.                
          Weber v. Commissioner, 103 T.C. 378, 386 (1994), affd. per curiam           
          60 F.3d 1104 (4th Cir. 1995).  However, the Court of Appeals for            
          the Fifth Circuit, to which an appeal in this case would lie, has           
          held that the determination of employment status is a question of           
          law.  Breaux & Daigle, Inc. v. United States, 900 F.2d 49, 51               
          (5th Cir. 1990).  In any event, petitioners have the burden of              
          proof.  Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115                  
          (1933).                                                                     
               The definition of "employee" found in section 3121(d) that             
          applies for purposes of the Federal Insurance Contributions Act             
          also applies to the issues involved in this case; namely the tax            
          on self-employment income and the deductibility of contributions            
          to a Keogh plan.  Secs. 1402(d), 401(c), 404(a)(8)(A).  Section             
          3121(d) provides:                                                           
               For purposes of this chapter, the term "employee" means--              
                    (1) any officer of a corporation; or                              
                    (2) any individual who, under the usual common law                
               rules applicable in determining the employer-employee                  
               relationship, has the status of an employee; * * *                     
          Respondent argues that Dr. Pariani was an employee both under               
          section 3121(d)(1), because he was an officer of the Association,           
          and under the common law test incorporated in section 3121(d)(2).           
          Although petitioners appear to concede that Dr. Pariani was an              
          employee of the Association with respect to his duties as                   





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