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(3) Consistency required in the case of prior tax
treatment.–-Paragraph (1) shall not apply with respect
to the treatment of any individual for employment tax
purposes for any period ending after December 31, 1978,
if the taxpayer (or a predecessor) has treated any
individual holding a substantially similar position as
an employee for purposes of the employment taxes for
any period beginning after December 31, 1977.
Petitioner does not satisfy the requirements of section 530
and is therefore not eligible for relief under that section for
at least the following two reasons.
First, section 530(a)(1)(A) conditions the applicability of
relief to the situation where “the taxpayer did not treat an
individual as an employee for any period”. Section 530(a)(3)
clarifies this requirement by providing that for periods after
December 31, 1977, if “the taxpayer (or a predecessor) has
treated any individual holding a substantially similar position
as an employee”, then section 530 relief is not available to the
taxpayer. Thus, if the taxpayer treats any service provider as
an employee for any period after December 31, 1977, then the
taxpayer is precluded from obtaining section 530 relief with
respect to a similarly situated service provider in any
subsequent taxable period. See Lowen Corp. v. United States, 785
F. Supp. 913, 916 (D. Kan. 1992), affd. sub nom. Eastern Inv.
Corp. v. United States, 49 F.3d 651 (10th Cir. 1995). A
fortiori, if the taxpayer treats a particular service provider as
an employee for any period after December 31, 1977, then the
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