Wiley L. Barron, CPA, Ltd. - Page 23




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          case is clearly distinguishable, however, as demonstrated by the            
          fact that it neither cites Spicer Accounting, Inc. v. United                
          States, supra, nor involves section 530.  Indeed, Durando v.                
          United States, supra, does not present any issue involving the              
          classification of a service provider and does not even involve              
          employment taxes.  Rather, the case holds that passthrough income           
          from an S corporation may not be treated as net earnings from               
          self-employment for the purpose of a Keogh plan deduction.8                 
               In view of the foregoing, we hold that petitioner is not               
          eligible for relief under section 530.                                      
                                     Conclusion                                       
               We have carefully considered remaining arguments made by               
          petitioner for a result contrary to that expressed herein and, to           
          the extent not discussed above, we consider those arguments to be           
          without merit.9                                                             




               8  Although a shareholder of an S corporation may not                  
          establish a Keogh plan, the Court of Appeals stated that the S              
          corporation may establish a retirement plan for its employees;              
          the Court of Appeals also quoted from one of the Commissioner’s             
          publications to the effect that an officer of an S corporation              
          who performs substantial services is an employee of the S                   
          corporation.  See Durando v. United States, 70 F.3d 548, 551 n.6            
          (9th Cir. 1995).                                                            
               9  Among those arguments is petitioner’s allegation that               
          respondent’s brief was filed 1 day late and that “Respondent                
          should also be held to the rules.”  Contrary to petitioner’s                
          allegation, respondent’s brief was timely filed pursuant to sec.            
          7502(a).                                                                    





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