- 11 - taxed to its true earner, Commissioner v. Culbertson, supra at 739-740; Lucas v. Earl, 281 U.S. 111, 114-115 (1930), and a validly organized and operated corporation's existence must be recognized for tax purposes, Moline Properties, Inc. v. Commissioner, 319 U.S. 436, 438-439 (1943)--a determination of the true earner requires a more refined inquiry than merely pointing to the actual performer of the services. Johnson v. Commissioner, 78 T.C. 882, 890-891 (1982), affd. without published opinion 734 F.2d 20 (9th Cir. 1984). Instead, we must determine, as between the corporation and its service-performing agent or shareholder, who controls the earning of the income. Id. at 891, and cases cited therein. A two-part test must be satisfied before the corporation, rather than its service- performing agent or shareholder, will be considered to control the earning of the income. First, the service provider must be the employee of the corporation, whom the corporation has the right to direct and control in some meaningful sense. Second, there must exist between the corporation and the service recipient a contract or similar indicium recognizing the corporation's controlling position. Haag v. Commissioner, 88 T.C. 604, 611 (1987), affd. without published opinion 855 F.2d 855 (8th Cir. 1988); Johnson v. Commissioner, supra at 891; see also Leavell v. Commissioner, 104 T.C. 140, 151-152 (1995). On the basis of the evidence in this case, we do not believe that petitioners can meet either component of the test. First,Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
Last modified: May 25, 2011