Philip E. Lucas - Page 3




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               Petitioner performed services for a subcontractor, N & M                 
          Custom Framing (N & M), during 1994 and 1995.  Initially, during              
          a portion of 1994, N & M treated petitioner as an employee and                
          withheld income and Social Security or Medicare taxes from his                
          wages.  However for the entire year 1995, N & M treated                       
          petitioner as an independent contractor and did not withhold any              
          Federal income tax or other employment-related taxes from his                 
          wages.  For 1995, N & M issued petitioner a Form 1099                         
          Miscellaneous, rather than a Form W-2, reflecting $20,373 of                  
          income.                                                                       
               Petitioner did not file a Federal income tax return for the              
          year in issue.  By notice of deficiency, respondent determined                
          that petitioner received self-employment income in the amount of              
          $20,373 and that he was liable for Federal income tax, as well as             
          self-employment tax.  Respondent now concedes that petitioner was             
          an employee for the year in issue and is not liable for self-                 
          employment tax.  Respondent also determined that petitioner was               
          liable for an addition to tax under section 6651(a)(1) for                    
          failure to timely file a return.                                              
                                        OPINION                                         
               A.  Liability for Income Tax                                             
               Petitioner contends that he is not liable for income tax for             
          the year in issue because his employer failed to withhold any                 
          income tax from his wages.  He asserts that his employer is the               





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