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3101, 3111. Petitioners maintain that none of the amounts paid
to or on behalf of Michael and Jody constitute employee wages.
They argue that respondent's treatment of portions of such
amounts as employee wages is arbitrary.
Section 3121(d) provides that the term "employee" means:
(1) any officer of a corporation; or
(2) any individual who, under usual common law
rules applicable in determining the employer-employee
relationship, has the status of an employee; * * *
We first consider whether Michael and Jody provided services
to the corporation as employees under common-law rules.
Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322-325 (1992).
Whether an individual is a common-law employee is a question of
fact. Weber v. Commissioner, 103 T.C. 378, 386 (1994), affd. per
curiam 60 F.3d 1104 (4th Cir. 1995).
Among the relevant factors to be considered in deciding the
nature of the employer-employee relationship are the following:
(1) The degree of control exercised by the principal over the
details of the work; (2) which party invests in the facilities
used in the work; (3) the hired party's role in hiring and paying
assistants; (4) the permanency of the relationship between the
parties to the relationship; (5) the extent of the hired party's
discretion over when and how long to work; (6) whether the work
performed is an integral part of the principal's business; (7)
the relationship the parties believe they are creating; and (8)
the provision of benefits typical of those provided to employees.
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