Wesley C. and Rhonda A. Wickum - Page 11

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          a statutory employee, he was aware that the “statutory employee”            
          box on his Form W-2 was not checked.  Petitioner consulted with a           
          tax attorney and discussed the nature of his work and the                   
          policies he sold.  Following the consultation, the attorney                 
          advised petitioner to file as a statutory employee.  On his                 
          original return for 1990, he listed his occupation as “Insurance            
          Sales”.  He listed his business in the same way on his amended              
          return.  On his returns for 1992 and 1993, he listed his business           
          as “Life Insurance Sales”.  Combined withheld tax for all the               
          years in issue.                                                             
                                       OPINION                                        
          Statutory Employee                                                          
               Petitioners argue that petitioner was an employee under                
          section 3121(d)(3)(B), i.e., a statutory employee, while                    
          respondent argues that petitioner does not qualify as a statutory           
          employee.  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; or                        
                    (3) any individual (other than an individual who                  
               is an employee under paragraph (1) or (2)) who performs                
               services for remuneration for any person--                             
                         *     *     *     *     *     *     *                        
                         (B) as a full-time life insurance salesman;                  
                    * * *                                                             




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