Robert Patrick Day - Page 17




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          the services provided by the drivers were an essential and normal           
          part of petitioner's regular business.  See In re McAtee, supra             
          at 572.  This factor supports a finding that the drivers were               
          petitioner's employees.                                                     
               6.  Permanency of the Relationship                                     
               Generally, the drivers worked for petitioner for a short               
          time.  A transitory work relationship may point toward                      
          independent contractor status.  See Herman v. Express Sixty-                
          Minutes Delivery Serv., Inc., 161 F.3d 299, 305 (5th Cir. 1998).            
          However, if the workers work in the course of the employer's                
          trade or business, that they do not work regularly is not                   
          significant.  See United States v. Silk, 331 U.S. at 718; see               
          also Avis Rent A Car System v. United States, supra at 430                  
          (transients may be employees); Kelly v. Commissioner, T.C. Memo.            
          1999-140 (working for a number of employers during a tax year               
          does not necessitate treatment as an independent contractor).               
               In considering the permanency of the relationship, we must             
          also consider petitioner's right to discharge the drivers, and              
          the drivers' right to quit, at any time.  Usually, the right to             
          discharge a worker, and the worker's right to quit, at any time             
          indicates an employer-employee relationship.  See United States             
          v. W.M. Webb, Inc., 397 U.S. at 193 ("'The right to discharge is            
          also an important factor indicating that the person possessing              
          that right is an employer.'" (quoting sec. 31.3121(d)-1(c)(2),              






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