Robert Patrick Day - Page 9




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          has an opportunity to profit depending on his management skill,             
          he may be an independent contractor.  (5) If a service rendered             
          requires a special skill, the person rendering it may be an                 
          independent contractor.  (6) If the relationship between a person           
          rendering a service and the person receiving it is permanent, it            
          may be an employment relationship.  (7) If a person rendering a             
          service works in the course of the recipient's business, rather             
          than in some ancillary capacity, he may be an employee.                     
               The Court of Appeals for the Eighth Circuit, the court to              
          which any appeal in this case would lie, has adopted the Avis               
          test.  See Nuttelman v. Vossberg, 753 F.2d 712, 714 (8th Cir.               
          1985); In re McAtee, supra at 572.  The list of factors in the              
          Avis test is not exhaustive or exclusive.  See Breaux & Daigle,             
          Inc. v. United States, supra at 51; Avis Rent A Car System, Inc.            
          v. United States, supra at 429 n.3; In re McAtee, supra at 571-             
          572.  Determination of whether individuals are "employees" for              
          the purpose of employment taxes depends upon the totality of                
          their circumstances, and no single consideration governs.  See              
          Avis Rent A Car System, Inc. v. United States, supra at 430; Azad           
          v. United States, 388 F.2d 74, 76 (8th Cir. 1968).                          
               Although the determination of employee status is to be made            
          by common law concepts, a realistic interpretation of the term              
          "employee" should be adopted, and doubtful questions should be              
          resolved in favor of employment in order to accomplish the                  






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