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for self-employment tax. This is a factual question.
See Professional & Executive Leasing, Inc. v. Commissioner,
89 T.C. 225, 232 (1987), affd. 862 F.2d 751 (9th Cir.
1988); Packard v. Commissioner, 63 T.C. 621 (1975).
Petitioners rely upon the vague and self-serving
testimony of Mr. Vetrano and Mr. Gartland and on the fact
that BMAP issued payroll checks and Forms W-2 to
Mr. Vetrano. In their testimony at trial, petitioner and
Mr. Gartland simply label petitioner as an employee. There
is nothing in their testimony or in the record of this case
to show that, with respect to his earning of the unreported
income, Mr. Vetrano was an employee of BMAP under the usual
common-law rules applicable in determining the employee-
employer relationship. See, e.g., Rev. Rul. 87-41, 1987-1,
C.B. 296. For example, there is no evidence that BMAP,
Mr. Gartland, or any other person had the right to control
petitioner’s activities in any fashion. There is no
evidence that petitioner was obligated to devote any of his
time to BMAP. BMAP supplied no equipment, training, office
space, or expense reimbursements to petitioner. Indeed,
neither petitioner nor Mr. Gartland was able to explain how
petitioner’s alleged salary payments were computed.
Accordingly, we conclude that petitioner was an independent
contractor subject to self-employment tax.
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