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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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