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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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