Robert Patrick Day - Page 16




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          payment of higher tolls, petitioner charged him for the extra               
          expense.  We do not find this instance of a driver's liability              
          for the extra toll charges supportive of petitioner's assertion             
          that his drivers were independent contractors.                              
               Charging an employee for losses caused by the employee is              
          not incompatible with employee status.  See Gierek v.                       
          Commissioner, T.C. Memo. 1993-642 (employee stockbroker charged             
          for substantial trading loss errors); Butchko v. Commissioner,              
          T.C. Memo. 1978-209 (racetrack teller's cash register shortages             
          characterized as employee business expenses and deductible only             
          as itemized deductions), affd. 638 F.2d 1214 (9th Cir. 1981).               
          This factor supports respondent's determination that the drivers            
          were employees.                                                             
               5.  Special Skill                                                      
               Although the Court recognizes that driving a truck requires            
          skill, we do not think that it is the type of skill envisioned by           
          the Court of Appeals for the Second Circuit in deciding Avis Rent           
          A Car System, Inc. v. United States, 503 F.2d 423 (2d Cir. 1974).           
          See In re McAtee, 126 Bankr. at 572.  Rather, the special skill             
          pertains to services that are outside of the ordinary course of             
          petitioner's business.  See id.; McLaughlin v. Seafood, Inc., 861           
          F.2d 450 (5th Cir. 1988) (the workers were not specialists called           
          in to solve a problem, but laborers who performed the essential,            
          everyday chores of their employer's operation).  In this case,              






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