- 22 -
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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