Donald Victor Teschner - Page 7

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          employer-employee relationship exists when an employer retains              
          the right to control the manner and means by which an individual            
          performs services.  Nationwide Mut. Ins. Co. v. Darden, supra;              
          Simpson v. Commissioner, supra; Ellison v. Commissioner, 55 T.C.            
          142, 152-153 (1970).                                                        
               Petitioner received income from several activities.  We have           
          divided the activities into two groups:  (1) Income from the                
          Stewart band and (2) other income.                                          
               A. Income From the Stewart Band                                        
               Upon reviewing the entire record in light of the above                 
          factors, we hold that petitioner received income from his                   
          activity with the Stewart band as an employee during 1991.                  
          Several factors support our conclusion.                                     
               First, Stewart controlled how, when, and where petitioner              
          was to perform his services.  Petitioner was required to tour,              
          travel, and perform according to the band’s scheduled                       
          performances.  Moreover, Stewart had influence over what                    
          petitioner wore on and off the stage, which instruments he                  
          brought with him and played, and which songs he performed.  While           
          it is true that petitioner had some flexibility in choosing which           
          chords to play, his ability to improvise was limited by the                 
          framework provided by the Stewart band.  Second, petitioner was             
          an integral part of the band while on tour.  This fact suggests             
          that an employment relationship existed.  Finally, while                    

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